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illustrent  la  m^thode. 


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1        ♦ 


*  •. 


I 

i 


REVIEW    OF    THE    OTINION  •     • 


or 


JUDGE   COWEN, 


or 


THE  SUPREME  COURT  OP  THE  STATE  OF  NEW-YORK, 


IN 


THE  CASE  OF  ALEXANDER  McLEOD. 


BT 


JUDGE    TALLMADGE, 


OF 


THE    SUPERIOR    COURT    OF    THE    CITY    OF     NEW-YORK. 


NEW. YORK: 
PUBLISHBD    BY    N.    T.    ELDRBDGE. 

1841. 


■      '  '1.1   !<■ 


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■  I   I-    -•; 


K. 


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i 


Z,  A.   CLAYTON,  PRINTEB, 
/fo.  9  Thamcistrcct, 


ii 


-.1.1  a 


t 


TO 

THE     HON.     DANIEL     WEBSTER, 

SECRETARY  OF  STATE  OF  THE  UNITED  STATES 

The  following  Review  of  the  Opinion  of  Judge  Cowen,  of 
the  Supreme  Court  of  the  Slate  of  New-York,  in  the  case 
of  Alexander  McLeod,  is  respectfully  inscribed,  by 

A  CITIZEN  OF  NEW-YORK. 


.  ii 


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11 


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n  • 


♦.' 


I 


PnUMSIlKirS  IMM'IKACK. 


The  follovvitit^  KcvifiW  w;i,s  originally  publislicd  under  llu; 
anonymous  (Icsignatioii  of  "  A  ('ilizcu  of  INcw-Vork." — 'J'liu 
principles  of  law  i\ivav.  laid  down,  and  iIk;  dislin^niislicd  abilily 
willi  which  they  were  maintained,  cxciled  the  attenlion  atid 
called  forth  the  nncpialilicd  approbation  ol"  the  most  eminent 
Statesmen  and  Jurists  in  the  country.  A  new  edition  being 
rc(juire(l,  the  author  has  ma.de  the  necessary  corrections,  lur- 
nislicd  some  additional  auliiorilics,  and  given  p(;rmission  to 
prelix  his  name;.  VVc  are  also  allowed  to  add  the  huters  of 
CuANCKLLOu  Kknt  aud  (JiiiKK  Jiis  TUK  Si'JCNCKK,  cacli  afllrin- 
ing  and  sustaining  to  the  fullest  extent,  every  position  taken 
by  the  llevicwcr.  The  authority  which  iIkj  names  of  those 
distinguished  jurists  carry  with  them,  and  the  well  reasoned 
matter  of  the  Keview,  cannot  fail  to  satisfy  every  unj)rejudiced 
mind,  that  the  Su[)remc  Court  ol'the  State  of  j\'ew-Vork  egro- 
giously  erred  in  decdaring  tlic  principles  of  national  law  in  the 
case  of  Alcrandcr  McJ^cod. 

To  McLcod,  individually,  the  decisi'f  of  the  Supreme  Court 
is  no  longer  of  any  inn)ortancc.  Hut  s  far  as  it  may  b])eratc 
as  a  precedent,  or  be  cited  as  autliority,  hereafter,  in  cases 
involving  questions  of  peace  or  war  with  foreign  powers,  it  is 
of  vital  importance.  McLcod  having  been  accjuitted,  there 
was  no  opportunity  to  review  the  decision  of  the  Supr(;me 
Court  before  a  higher  tribunal.  If  there  had  been,  we  have 
no  doubt  such  tribunal  would  have  come  to  the  same  conclu- 
sions to  which  the  Reviewer  has  arrived.  And  we  venture  to 
predict  that,  whenever  such  <]uestions  shall  again  arise,  this 
Review  will  be  referred  to,  as  containing  the  true  principles 
on  which  the  decision  of  them  must  rest. 


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I  ii.MMKMiAlnHV   l.i;!!  KKS  I  MuM  i  II  \N(  ll.l.oil   M.IN  I    ANI>  (1111,1 

.M'SIHI,  SI'I.M  I  |( 


NUW  ■  Vnllll,    Ni>i  ciilh,  t    li/A,    I II  It 


l)(.kll    .Sill, 


I   lllllllk   V""   l">IV«»l|l    lf(\  HW  iiT  llir  (i|Mliinii 
«»r.)u(l;j[ti  (-'uWION   ill   (lid  <  limi  ul    Ml  l.riiil. 

Il  in  vny  iihly  nxmilrd.  ||.  i.s  clnif,  lurri'ir,  iiciil,  iirciiruh', 
(111(1  niliirly  ((HicliiMivd  ii|m»ii  fvciy  |i(iiiil.  I  Iiiiv(!  i«wiil  il  uiih 
L(l('llt  Miiti'ilJii'liiiii,  iilid  I  mIkhiM  Iiiivi!  Iici'Ii  |)|(ii|(I  il'  I  Ii;ii|  \u(i\ 
llid  aiilliiii  oi  il. 

\'(ii|l  I,   very  K;  i|ic(irii||y, 


HON.  nANiin,  II.  I'Ai.i.M Aitdi'; 


JAMKM  IsKNI 


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1 


I.ViiNi,    Siiftmlni     !"//(,    lull 


Mv     |)l'  All    .Sill, 


V'diii  Idler,  nrc(»iii|);iiii(;(|  liy  ;i  Ifcvicw  (»| 
Mr.  .Iii'ilicc  (  !(»wi.;n',m  o|tiiii(iii  m  llic  Mrl.md  nisv,  Tkhii  llie;  pi-ii 
ol  .lii(l;^c  Tallmaimii.:,  luis  Imcm  itccivcd,  .-iiid  I  lliiink  y,,ii  liti 
lliclii.  I  liiivc  rcid  llir  Kcvicw  with  ;>rc;i|  H;ilisl;i(lioii,;iiid  cmi 
.sidcr  il  ;i  iiiii,s|(;ily  and  iiiiMiiHVvci.ilth;  (irodiiciioii.  Il,  n'\\\\r<i 
.•iiid  ovcilliKiwii  llii'  n|)iiiiiMi  inii  I  ;iiii|tly.  'I'Ik;  aiillioi  ilics 
Ujioii  idl  till-  pnilils,  (Acciil  nil  I  li.il  ul' I  |ir  |»r(M(:cdiii«>;(  nii /////y^.s 
rorims,  ;ii(;  iiill  :iiid  |((ili'r(.  ||  |)i(»l);il)ly  did  iml  occm  iK.lndct; 
TallmaikjI':  I(»  (ixuiiiinc  om  Si.ilnlcdl  /A//;m.v  (\nfiit.n,  XJ  //.  ,S'. 
ACM.  Tlic  icvi.scd  ;i((.  KJiis  lo  the  l.iw.'i  of  |s|s,  vvliicli  con 
t;iiii  ;iii  (•iiiiclniciil  (li;i\vii  l)y  inc.  I'tioi  lo  llii*  Sliiliilc  i|,  w.i.t 
iiiMllcrorLMciit  .IoiiIm.  wIiciIici  a  .Uuluv,  ;j|  ( lliambcr.s,  uv  t.Vi:u 
tli(;  Couil  ilscir,  lotild,  al'icr  (lie  rcliirn  made,  cxariiiiKr  info  the 


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ri! 


8 


fiirfs  (ili until',  ill  contnidicliou  nr  rxplanfUion  ofilic  return  totlie 
\viif.  'I'liat  :ic|  .'111(1  iIh;  revised  l;i\v  ^'ive  ex[)ress  power  to 
iiiiiUc!  such  cxjimiiiMliiMi ;  mid  llio  lorly-oi^dilli  s(;etinii  aiitliori- 
z«.'.s,  iti  express  leriii.s,  the  .Judge,  idler  liriiriiig  llic  "allegations 
juid  proofs  to  dispose  olsneli  parly  as  llic  justict;  of  the  case 
may  rr(iulre."  Tlio  l()rlietii  section  of  the  act  spc(;ilicnlly 
directs  wlicn  the  party  sliall  be  rcmomkiU  and  liune  are  only 
thr(!C  eases.  It  follows  inevitably,  that  in  every  other  ease,  the 
Judge,  or  Cyurt,  has  plenary  powers,  if  he  or  they  sec  fit  to 
discharge  ort  bail. 

The  three;  cases  arc. 

First,  a  detention  on  process  issued  by  a.  Court  or  .Judge  of 
the  Uniteil  Stales,  where  such  court  or  Judge  has  exclusive 
jurisdiction. 

Second,  detention  on  a  judgnicnt  ort  decree  of  any  competent 
Court  of  civil  or  criminal  jurisdiction,  or  on  an  execution  issued 
thereon. 

Third,  for  contempt,  kc. 

Now  the  speciricaiion  of  the  rn«jo  iti  whicli  tl;.c  party  suing 
owi -A  hdlmis  corpus  shall  bo  remanded,  and  giving  full  jurisdic- 
tion lo  deside  till  other  cases,  and  to  remand  or  bail,  proves  that 
the  fact  of  an  indictment  found,  even  for  murder,  raises  no 
objection  to  a  discharge  or  bailing. 

With  high  esteem  and  regard. 

Yours  truly, 

A.  SrENCEK 


>'!'  •! 


REVIKW,  &ic. 


The  importance  of  the  (juestioiis  involved  in  the  opinion  de- 
livered by  Judge  Cowen,  of  the  Supreme  (Jourt  of  the  iStale 
of  New-York,  in  the  case  of  Alexander  McLrml,  nnd  the  erro- 
neous principles  of  n;ilional  law  put  forth  in  that  opinion,  s(!cm 
to  require  that  the  true  doctrines  involved  in  the  ciisc  should  he 
placed  in  a  correct  !iu[ht  l)('l()r('  the  country.  To  thiit  cud,  we 
have  ventured  to  emhody  the  result  of  our  exaininntion  of  the 
subject  in  the  l()llowiiig  review  of  Judge  Cowen's  oj)inion. 

I^he  o|)inion  is  delicicnt  in  rncihodic;d  arrangenuMit  of  the 
sevv'ral  positions  taken  and  maintained  by  the  .ludgc  ;  ;ind  this 
confusion  is  increased  by  a  b;i(lly  arranged  citation  of  author- 
ities, and  a  rambling  mode  of  discussing  the  subjects.  It  is  also 
much  too  long  ;  being  nearly  double  tlu:  length  re(]uircd  to  dis- 
cuss the  matters  rmllij  in  issue,  even  in  Juilge  Cowicn'h  mode 
of  discussing  them.  Why,  for  exam[)le,  go  through  witii  an 
examination  of  tiio  (jucslion  whether  our  courts  have;  jurisdic- 
tion, and  a  right  to  try  a.Jutrlirnf;r  for  ;i  crime  commit tJ^l  within 
our  State,  and  (juole  the  authorities  bearing  upon  the  subject  to 
prove  the  jurisdiction,  when  not  a  person,  lawyer  or  layman, 
ever  doubted  it!  and  when  the  Judge  liimself  finally  says, 
"want  of  jurisdiction  has  not  been  put  on  the  ground  that 
McLcod  was  a  foreigner." 

The  other  branch  of  the  question  of  jurisdiction,  discussed 
at  great  length  by  the  Judge,  seems  to  us  an  equal  waste  of 
labour  and  learning.  As  we  understand  it,  the  case  oi' McLeod 
does  not  involve  any  question  of  jurisdiction  :  for  it  must  be 
conceded  that  our  state  courts  have  jurisdiction  over  all  cases  of 
murder  committed  within  the  bound ry  of  the  State.  McLeod^s 
case  presents  for  consideration — not  a  question  of  jurisdiction, 
but  a  question  of  guilt  or  innocence ;  whether  the  homicide 
2 


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with  wliicli  lie  is  i-liiirged  be  a  riime  acrorcling  to  the  law  of" 
iiiilidiis. 

It'll  sheriir  should,  in  piirsunnco  ol"  ;i  ponloncc,  hiuig  a  poi- 
son convirtcd  of  iiiin-(h<r,  and  allor  tlie  oxrculion  it  should  he 
ascerlainod  that  tho  [)ci-,soii  executed  \v;is  innocent,  and  a  grand 
jury  should  thercMipon  indict  the  slieiiin'o;-  die  murder  of  the 
jxason  executed,  iIk;  sheriireould  iiol  in((,'ri)os<' an  ol)jci:lion  to 
the  jurisdiction  J)l"the  court,  hut  would  rely  liir  his  deleiurc  and 
just  ideation  upon  the  fact  of  a.  conviction  by  a  court  oi"  com- 
petent jurisdiction  ;  thereby  showing  that  the  homicide  in  him 
AViis  not  a  crime. 

So,  ;dso,  if  a  soldier  should  be  tri(vl  by  aconrt-marlial,  aud 
sculenc(.'d  to  he  shot;  and,  after  his  execution,  those  engnged 
in  it  should  be  indictetl  tor  murder;  their  defence  would  not 
be  a  waul  ot"  jurisdiction  in  the  state  court,  but  a  justification 
before  that  court,  under  a  regular  (^ourl-martial  conviction  and 
ficntence,  thereby  showing  that  the  homicide  was  not  a  mur- 
der. 

Snj)p()se,  after  llu^  peace  with  (Ireat,  Brilaui,  a  I'>ritish  sol- 
dier had  come  within  our  State,  and  had  been  arrested  and  in- 
dicted ibr  murder  committed  in  the  attack  on  Jiullido  during 
the  war;  he  would  not  think  ot"  raising  a  (piestion  of  jurisdic- 
tion in  the  court,  but  would  r<'ly  on  the  law  of  nations  to  justify 
the  homicitle,  and  reliev(>  him  from  the  charge  ot"  crime. 
Indeed,  whenever  a  (juestion  of  the  jurisdiction  of  a  court  is 
raised,  it  necessarily  admits  the  charge  or  claim  preferred. 
The  plea  to  the  jurisilictiou  is  one  of  confession  and  avoid.ance  ; 
surely  the  counsel  of  McLrtni  never  intended  to  admit,  tin"  a 
moment,  the  crime  of  munhu',  with  which  he  was  charged,  and 
seek  to  escape  its  conse(|uences  by  alleging  that  the  court  had 
not  jurisdic-tion  over  the  otlence!  In  this  part  of  the  opinion, 
therett)re,  we  think  the  Judge  must  have  been  fighting  a  sha- 
dow of  his  own  casting. 

There  is,  also,  ;mother  [)rnt  of  this  opinion,  and  no  inconsi- 
derable part  ol"  it,  that  appears  to  be  a,  waste  of  learning  and 
authorities.  It  is  that  [);irt  in  which  the  Judge  proves,  beyond 
question,  "thiit  every  voluntary  entrance  into  neutral  territory, 


11 


dic- 
ifily 
me. 
It  is 
icd. 
nco  ; 
)r  a 
and 
Kid 


tvlth  hostile  purposes,  is  ahsolulely  uiiliiAvfnI ;"  yet,  aller  nn 
elaborate  disciission  of  this  (|ii(!Stion,  a  ciliitioii  o("aiithorili<\s  at 
great  length  to  prove  xho  vntaujiibicss  of  the  violation  of  our 
territory  by  England,  the  Judge  says,  "that  the  aet  was  one 
of  mere  arbitrary  usurpalion;  tvax  iiul  dnurd  on  the  ar'^iimcnt ; 
nor  hits  (his,  I  hat  1  am  mvarc  of,  been  denied  hij  omj  one  cxapt  Knij;- 
land  hcr.sclf.''^ 

We  concede  that  \\\v,  aiuhorities  ciled  .^how  that  the  hostile 
attack  upon  the  Caroline,  and  the  violation  of  our  territcny,  was 
unlawful;  that  is,  without  adecjuate  (;ause;  but  not  one  of  all 
the  authorities  which  pronounce  a  violation  of  territory  unlaw- 
ful, denounce  upon  iIk;  military  of  the  nulion,  under  whose 
authority  it  is  done,  any  personnl  penalty. 

If  we  examine  history,  we  shnll  find  that  (juite  as  many 
wars  have  hcvn  commenc;ed  without,  as  with  ade(]uat(!  cause, 
when  tested  by  the  general  reason  and  sense  of  mankind;  yet 
no  one  ever  thought  of  making  that  the  test  of  the  impunity 
belonging  to  the  military  engaged.  Such  a  test  can  only  be 
applied  to  controversies  between  individuals,  where  there  is  a 
common  arbiter  or  judge  to  (liH'ide;  never  l)elween  nations, 
who  admit  no  judge  but  themselves.  'V\\v.  argument,  there- 
fore, on  the  side  oi'  McLcod,  is  not  at  all  weakened  by  not  de- 
nying that  the  attack  was  unjustifiable  on  the  part  of  his  nation. 

In  the  examination  of  this  subject,  we  shall  concede  what 
has  never  betai  denied,  and  what  has  taken  so  much  of  this 
learned  opinion  to  prove,  to  wit :  tiiat  a  foreigner  is  liable  to  be 
tried  by  our  courts  for  crimes  committed  within  the  State;  that 
the  state  courts  have  jurisdiction  in  all  cases  of  murder  commit- 
ted within  the  State;  and,  lltrthe  sake  of  the  argument,  that  the 
hostile  expedition,  in  which  the  Caioline  was  burned,  and 
Durfee  killed,  was  an  unlawful  violation  of  our  territory. 

We  proceed,  then,  to  the  discussion  of  the  main  (piestion 
involved  in  this  case,  to  wit:  whether  McLcod  is  entitled  to  the 
impunit}^  of  a  soldier  in  time  of  war. 

The  points  sought  to  be  established  by  the  affidavit  of 
McLcod,  are  thus  concisely  staled  by  J  udge  Cowen  : 


!i 


ifr.i 


l\        t: 


ir> 


'SI 


12 


Tlint.  llic  Niii^iim  iVoiilior  wiis  in  m  stnleorwnrM^'ninst  tlir 
conti^iMtiis  ]»n)viii('(^  of  I  '|»|t(M"  ( ';iii!i(l;i ;  lli.-il  llic  lioiiiicidc  wms 
Odiiiinillcd  i>y  McLmd,  il  ill  .ill,  iin  uiii-  ()|';i  iiiilil;il y  cNliciillidii, 
nrl  on  loot  hy  ilic  ('.-iiiiuliiiii  iintliorilirs  lo  dcslroy  llic  lio.il  Cii- 
loliiic  ;  lliMl  lie  \v;is  ;i,  lliilisli  siiiijcci  ;  lli.il  llic  cx|ic(lili()M 
iTosscd  our  l)ouiid:nv,  soiinlil  tin;  (';ii'n|iiic  jit  licr  iiiooi  iii;;>i  in 
Sclilnsscr,  iiiid  llicic  scl,  lilt'  lo  ;iiid  Imiiii'd  licr,  and  kil!cd 
Diiilcc,  (Jiic  oliiiir  citi/ciis,  ;is  il  is  luwCiil  lodo  in  lime  ofwar." 

From  siicli  M,  sliilc  oi"  I'licis  .liidij;(!  C)()\vi:n  iJikcs  liis  posiiioii 
in  t'cliition  lo  llic  ri^lil.^  nnd  liiihililics  oC  iMi^hnul  nnd  lior  riiil- 
ilury,  as  l()llo\vs: 

'*[  deny  lliiil  she  c:m,  in  lime  of  |)e;iee,  send  licr  men  irilo 
our  Iciritory,  imd  rende?-  ihem  impeivioiis  looiir  Iiiwh,  Uy  cin- 
hodvin^  lliem  mid  pntliii^  ;iiiiis  in  llieir  liiinds.  Slie  niiiy  di'- 
cliire  Wiir;  if  ahv  cluim  titr  hcinjit  af  priuw,  as  holli  mifioiis  lidi'v 
done  in  this  iiis/(iti<(\  the  iiioiiinif  anij  (if  lur  citiznis  nilvr  our  ft rri- 
tori/y  (/irij  tire  as  coinplrldii  ohiio.rioiis  to  punishmrnt,  loj  our  loir,  os 
if  t/in/  Itdil  firm  bom  oiiil  (i/inii/s  rc.sulnl  in  f/iis  coinifri/. 

"  I  w  ill  nol,  tliercli)re,  dis|)iite  llic  conslniclion  wliieh  coun- 
sel |)iil  upon  llic  l;ingii;i<;e  or  llie  iicls  oi' l'',n_L!;l;in(l.  TotesUlic 
law  ol'ilu*  Iriinsiiciioii,  I  will  concede  llial.  slic  had,  hy  aei  ot 
I'arliament,  conreinvl  all  ihc  power  which  can  be  (;oii!ended 
for  in  hchairollln.!  C'anadian  aulhoriliey,  as  Car  as  she  could 
do  so." 

'This,  we  confess,  is  mcclini^  !hiM|n(\stioii  holdly;  and  we 
accept,  for  ihe  sake  of  llic  nrmimcnt,  and  liir  llii-  pre.scnl,  the 
coneession  of  die  siinieiciKry  of  ihc  power  conliirrcc!  on  the  C'a- 
nadian aiilhorilies.  IW-liiic  \vc  leave  iIk^  subject,  howt'ver;  we 
will  dispense  with  this  concession,  and  establish  the  sniliciency 
of  this  power,  by  lh(>  most  clenr  and  conclusive^  authorilies. 

Upon  the  (|ncsiion  as  before^  slated  by  Judge  Cowi'.N,  he 
applies  lo  it  the  law  of  nations,  as  i()llows: 

"To  warrant  the  dcstrncrion  of  property,  or  the  lakini>  of  life, 
on  the  unMind  of  public  war,  if  must  bi*  what,  is  called  htuj'ul 
H-ar  by  the  law  of  nations;  a  lliin<;- which  can  nevcrcNist  wiih- 
t)Ut  the  (ic/iio/  cn/ifiirrciiff  of  llir  iror-niii/iiiiir  power.  This,  on 
the  |>arl  of  the  I'niled  Slates,  is  I'omrrcss:  on  the  part;  of  Kn- 
gland,  the  (^loai.  A  statc^  of  peace  and  the  conlinuance  of 
Irealics  nuist  be  presumed  by  all  courts  of  justice  till  the  con- 
trarv  be  shown ;  and  this 


\h( 


IS  IS  II  2>f'('iii(i>i2)(  10 juris 


ct  dc 


jure, 


unlil 


13 


we 

the 

Ca- 

\ve 

Micy 

lie 

life, 

iiij'ul 

'illi- 

Oll 

Kii- 
•e  of 
coii- 
iiutil 


tlio  niilioniil  power  oI'iIk;  coiinlry  in  wliich  such  coiiils  sit,  olli- 
ciiilly  (If'i'liMcs  the  conirjiry." 

Now  ilio  ciiliif  CI  Tor  ill  tlic  opiiiinn  olilic  .lii(lji^(!  .'irises  iVoiri 
tlie  eiToiieoiiH  piinciplc  ul"  iiilci  iiiilioiiiil  law  w  lii"li  lie  liei(^  liiy.s 
down. 

All  will  Jif^ree  thai  llie  war  which  alKirds  iiii|niiiily  to  lliosc; 
<Mi,u;a<;c(l  in  ii,  iiiiisi  Ik;  a  lavviiil  war.  Iliil  hy  the  leriii  lawliil 
war  is  not  iiicaiil  a  ^'■sn/niin  and  foninil  war"  only;  on  die  con- 
trary, it,  eoniprcliciids  every  d(\scri|)lion  of  war,  excitpt  hoslile 
oxpedilioiis  sci  on  liiot.  Tor  pnrpose.s  of  plunder  and  pillugc, 
widiout.  any  apparenl.  cause. 

Tfniherrordi  says:  "  H'oiie  iialion  seizes  die  tjfoods  oraiiodier 
nation  hy  llace,  iipim  account  ol  some  damage,  iVc.  such  eon- 
tcnlioris  hy  Torce  arc  nprisnh.  Tln're  may  he  likewise  olhtr 
ac(H  of  liosi'iliDj  hv\\\vv\\  two  nations,  which  do  not  pinpcily 
t'(»iii(;  nndcjlhc  name  ol  reprisals,  such  as  \\\r.  hesic<;iii<.f  each 
other's  (owns,  or  (he  siiikiiit»(>reac|i  other's  Meets,  whilst,  llir 
7i(i/i(ins  in  oilier  rcxjKrls  ore  <il  iicocr  inlli  one  tinof/irr.  These  aro 
•puhlir  inns,  hecanse  imfio/is  uyc.  the  coiiteiidin^  parlies.  I'»iit 
us  they  urc  conrnied  to  sonu;  parlicniar  olije(M,  ilu^y  arc;  of  ihe 
iiiijxr/irt  .sorf,^''  i\'c. —  K.  ii,  r.  U,  see.  10. 

In  o|)|)osilioii  to  this  anlhority,  it  will  he.  seen  that.  .Tud,£!;o 
('owioN  starts  with  iIk^  proposiii(»n  that,  so  loiiij;  as  the  ni/ire 
peace  oI'iIk!  two  nations  is  not.  hroken  up — in  other  words,  un- 
til Congress  shall  (le(;lare  war  against,  Mii<^land,  or  the  (^ue(Mi 
ol"  Kn^land  ai>ainst  us,  tlier(<  eaunot.  hc^a,  staU;  of  war  that  will 
warrant  tlu;  (h'strncliou  ol"  property,  or  tlu;  taking;  olliif!  incon- 
ili(jt,  on  either  side.  To  controvert  this  j)ro])ositioii,  we  hriiig 
not  only  l{iitli(!rl()rlli,  as  ahove  (uted,  l)Ut  Valtel,  in  language  if 
possihl(!  still  inon;  explicit. —  Ii.  Hi,  c.  ^,  see.  07. 

•'  A  war  lawful  and  in  form,  is  carefully  to  he  distinguished 
from  an  unlawful  warenteicdon  wilhoul  any  l()rm,  or  ralhrr 

from  f/iosr  iiiciirsioiis  irlncli  arc  roiiDiiitlrd  lillirr  irillioiil  hnrfiil  iiu- 
thori'ij  or  (ri)]iornif  nri/sr,  as  lihiirisr  irillioiil  fornuiHlics,  (nid,  ovltj 

for  liariH:  iiiiil  i)ill(ii!;r.  (Irotius,  h.  iii,  chap.  ^5,  I'clalcs  several 
insianc's  of  the  latter.  Such  were  the  wars  of  the  (Irtr/ii/rs 
Conipoiriiirs,  wliich  had  asscmhied  in  France  during  the  wars 
with  the  iMiglish;  armies  ol"  handitti  whicii  ranged  uhout  Eu- 
rope purely  ibr  siioil  and  plumkr.     {Sucli  were  the  cruises  of 


*       'i '  :l 


Im    I'd 


•    ii^ 


l|i 


i    ■ 


14 

Filbustlcrs,  wiiliout  commission  and  in  time  ofpeace ;  and  such 
in  general  are  the  depredations  of  pirates.  To  the  same  class 
belong  almost  all  the  expeditions  of  the  African  coroairs, 
though  authorized  by  a  sovereign,  they  being  founded  on  no 
Of  parent  just  cause,  ajid  whose  only  motive  is  the  avidity  of  captures. 
I  say  these  two  sorts  of  wars,  laufulam]  unlaivful,  are  to  be  care- 
fully distinguished  ;  their  effects  and  the  rights  arising  from  them 
being  very  different." 

Here  \vc  have  Vattel,  distinguishing  all  the  hostile  collisions 
of  nations  into  "  tivo  sorts  of  wars  ;^^  the  one  sort  being  underta- 
ken "  without  apparent  caiise,''^  and  for  "  havoc  and  pillage,^^  and 
all  that  do  not  come  under  this  head  being  of  the  other  sort. 
Having  thus  divided  wars  into  •' two  sorts,"  the  one  he  calls 
unlawful  war,  the  other  lawful  war. 

Vattel  does  not,  lUce  Judge  Cowen,  call  all  wars  unlawful 
that  are  not  formally  and  solcjnnly  declared  by  the  "  war-making 
power"  of  a  Government,  but  he  pronounces  all  hostile  attacks 
lawful  wars,  if  made  with  lawful  authority,  and  for  ^'■apparent 
cause,''''  and  not  for  ^^ pillage  and  havoc.'''' 

Chancellor  Kent,  too,  admits  that  a  formal  declaration  of 
was  is  not  essential  to  make  the  war  lawful.  All  that  is  requi- 
red to  make  a  lawful  war  is,  that  the  hostilities  be  authorized 
by  the  proper  authorities. — 1  KeiiCs  Com.  54. 

"  Since  the  time  of  Brinkershoock,  it  has  become  settled,  by 
the  practice  of  Europe,  that  war  may  lawfully  exist  by  decla- 
ration which  is  unilateral  only,  or  loithout  a  declaration  on  either 
side.  It  may  begin  with  mutual  hostilities.  In  the  war  between 
England  and  France,  in  1778,  the  first  public  act  on  the  part  of 
England  was  recalling  its  INIinister;  and  that  single  act  was 
considered  by  France  as  a  breach  of  the  peace  between  the 
two  countries.  There  was  no  other  declaration  of  war,  though 
each  Government  afterwards  published  a  manifesto,  in  vindi- 
cation of  its  claims  and  conduct.  The  same  thing  may  be  said 
of  the  war  which  broke  out  in  1793,  and  again  in  1803,  and 
indeed  in  the  war  of  1756.  Though  a  solemn  and  formal  de- 
claration of  war,  in  the  ancient  style,  was  made  in  June,  1756, 
various  hostilities  had  been  carried  on  for  a  year  preceding.''^ 

In  the  same  explicit  manner  Rutherforth  speaks,  denying  the 
necessity  of  a  declaration  of  war  to  make  the  war  lawful : 


15 


igh 


the 


I- 


"  The  only  real  cfTect  of  a  declaration  of  war  i^^,  that  it  makes 
the  war  a  general  one,  or  a  war  of  one  whole  nation  against 
another  wiiole  nation  ;  whilst  the  imperfect  sorts  of  war,  such  as 
reprisals,  or  acts  ontosfilif)/,  are  confined  to  ])anicular  persons, 
or  things,  or  p/accs." — Path.  B.  ii,  c.  9,  sec.  S. 

These  questions  do  not  depend  entirely  upon  the  opinions  of 
elementary  writers  upon  national  law.  They  have  been  illus- 
trated by  judicial  decisions,  in  courts  of  the  highest  authority. 

15  East,  225.  This  was  an  action  to  recover  back  the 
prennium  paid  on  a  marine  policy  of  insurance;  and  the  ques- 
tion was  whether  a  state  of  war  existed  at  the  time  the  insu- 
rance was  eflected  so  as  to  render  the  policy  void.  Hostilities 
had  been  commenced  by  Russia  against  England  the  day  be- 
fore the  insurance  was  eflccted,  but  was  not  known  to  either 
party  at  the  time.  For  the  defendants  it  was  insisted  that "  no- 
thing which  was  done  in  Russia,  even  if  it  had  been  known  here, 
would  have  bound  British  subjects,  until  the  state  of  war  was 
known  and  recognised  by  this  government." 

Lord  Ellcnborough.  "  The  commencement  of  hostilities  by  Rus- 
sia against  this  country,  placed  the  two  countries  in  a  state  of 
hostility,  and  made  the  subjects  of  Russia  enemies  to  this  coun- 
try at  the  time  when  this  insurance  was  eflected.  Formal  dc- 
claratio7is  of  war  only  make  ihe  state  of  war  more  notorious; 
but,  though  more  convenient  in  that  respect  are  not  necessary  to 
constitute  such  a  state.''^ 

1  Dodson^s  Admiralty  Reports,  247.  A  declaration  of  war 
was  issued  by  Sweden  against  Great  Britain,  on  account  of  the 
encroachments  of  the  latter  upon  her  rights  as  a  neutral  nation. 
It  was  contended  before  Sir  WiUiam  Scott,  that  the  two  coun- 
tries were  not,  in  reality,  in  a  state  of  war,  because  the  decla- 
tion  was  unilateral  only.  "  I  am,  however,  perfectly  clear," 
says  Sir  William  Scott,  "that  it  was  not  less  a  war  on  that 
account ;  for  war  may  exist  without  a  declaration  on  either 
side.  It  is  so  laid  down  by  the  best  writers  on  the  law  of  na- 
tions. A  declaration  of  war  by  one  country  only,  is  not,  as  has 
been  represented,  a  mere  challenge,  to  be  accepted  or  refused 
at  pleasure  by  the  other.  It  proves  the  existence  of  actual 
hostilities,  on  one  side  at  least,  and  puts  the  other  party  also 
into  a  state  of  war ;  though  he  may,  perhaps,  think  proper  to 
act  on  the  defensive  only." 

Thus,  it  will  be  perceived,  a  lawful  war  may  be  commenced 
without  any  formal  declaration,  and  it  may  be  manifested  by 


!1    .| 


m 


m  ?i 


li'i:;!  ■ 


16 


an  act  of  hostility,  without  any  previous  notice  ;  nnd  whether 
the  war  becomes  a  general  one  or  an  imperfect  war,  depends 
upon  the  extent  to  wliicli  hostilities  are  curried.  It  will  al- 
ways be  II  la ijf III  war,  if  the  hostilities  are  authorized  by  the 
jiroper  authority,  and  are  not  mere  wanton  depredations,  with- 
out any  a[)parcnt  cause. 

Are  the  militari/,  llie  general  ofliccrs  and  soldiers  whoengnge 
in  such  hostile  attacks  to  be  held  personally  answerable  in  the 
ordinnry  courts  of  law,  as  for  a  private  otlencc .'' 

The  same  principle  ol'  imp imlfy  ai)])lies  to  hostilities  upon  the 
land  or  sea.  When  they  are  wo,nton  and  malicious,  and  ^ov plun- 
der and  spoils,  at  sea,  they  arc  called  inracy.  Hostilities  by 
land,  from  similar  motives  and  for  like  objects,  are  called  rob- 
beries. Decisions,  therefore,  in  relation  to  hostilities  at  sea, 
and  the  impunity  or  liability  of  vessels  and  crews,  furnish  the 
rule  of  impunity  or  liability  to  be  applied  to  the  military,  in 
cases  of  hostilities  upon  land. 

11  Whcoton,  41,  Story  says  :  "  A  piratical  aggression  by  an 
armed  vessel  sailing  under  the  regular  flag  of  any  nation,  may 
be  justly  subjected  to  the  penalty  of  confiscation  for  such  a 
gross  breach  of  tiie  law  of  nations.  But  every  hostile  attack 
in  a  time  of  peace,  is  not  necessarily  piratical.  It  may  be  by 
mistake,  or  in  necessary  selt-defence,  or  to  repel  a  supposed  medi- 
tated attack  hy  pirates — it  may  be  justifiable,  and  then  no  blame 
attaches  to  the  act;  or,  it  may  be  without  just  cxcme,  and  then 
it  carries  responsibHity  in  damages.  If  it  {)roceed  further ;  if  it  be 
an  attack  from  rceengc  and  malignity,  from  gross  abuse  of  power 
and  settled  purpose  of  mischief,  it  then  assumes  the  character  of  a 
private  unauthorized  war,  and  may  be  punished  by  all  the  pen- 
alties which  the  law  of  nations  can  properly  administer." 

The  same  principle  is  recognised  in  1  Kenfs  Com.  188  :  "An 
alien,  under  the  sanction  of  a  national  commission,  cannot 
commit  piracy  ■while  he  pursues  his  authority.  His  acts  may  be 
hostile,  and  his  nation  responsible  for  them.  They  may  amount 
to  a  lawful  cause  of  war,  but  they  arc  never  to  be  regarded  as  pi- 
racy.^^ 

How  perfectly  does  this  principle  cover  the  case  in  question. 
The  attack  upon  the  Caroline  was  hostile  and  unlawful,  and 
the  British  nation  must  be  held  responsible  for  it.    It  amounts 


17 


Pi'it,    !f' 


t"  < 


.,1.' 


4- 


to  a  lawful  cause  of  war ;  but.  those  rrigaged  in  it,  acting  under 
lawful  authority,  can  never  be  rc^ru.dvxl  as  robbers  or  jjiunderers, 
or  liable  to  be  punished  critTiinally. 

This  principle  has  been  fully  recognised  in  a  judicial  deci- 
sion in  the  English  admiralty.  We  have  not  the  case  at  hand 
as  reported,  and  therefore  avail  ourselves  of  it  as  extracted  by 
Chancellor  Kent. — 1  Kcnt^s  Com.  190  : 

"  In  the  English  admiralty,  in  1801,  it  was  contended  that 
the  capture  and  sale  of  an  English  ship,  by  Algcrines,  was  an 
invalid  and  unlawful  conversion  of  the  property,  on  the  ground 
of  he.'mg  a  piratical  seizure.  It  was,  however,  decided,  that 
the  African  States  had  long  acquired  the  character  of  esta- 
blished Governments,  and  that  though  their  notions  of  justice 
differ  from  those  entertained  by  the  christian  powers,  their 
public  acts  could  not  be  called  in  question;  and  a  derivative 
title,  founded  on  an  Algcrine  capture,  and  matured  by  a  confis- 
cation, in  their  way,  was  good  against  the  original  owner." — 
Citing  7Vic  Helena,  4  Rob.  3. 

Shall  it  be  said  that  an  English  court  has  held  an  Algerino 
capture  lawful,  because  made  under  the  sanction  and  authority 
of  that  Government;  and  a  title  thus  acquired  valid  against 
the  original  English  owner  of  the  captured  vessel ;  and  yet  the 
Supreme  Court  of  New- York  decide  that  a  hostile  attack  upon 
us,  made  (not  without  apparent  cause)  under  the  sanction  of 
the  British  Government,  shall  not  protect  the  militar}'  engaged 
in  it  from  the  punishment  duo  to  cold-blooded  murder !  We 
regret  to  say  it  has  been  so  said  and  decided. 

The  decisions  of  the  courts  of  England  and  the  United 
States^  ia  regard  to  the  impunity  of  vessels  and  crews  when 
acting  under  the  authority  of  their  Governments,  are  decisions 
merely  carrying  out  principles  long  since  laid  down  by  the 
most  approved  elementary  writers  upon  national  law,  and 
giving  to  those  principles  the  authority  of  solemn  adjudications 
by  the  highest  judicial  tribunals  of  the  world. 

These  elementary  writers,  when  speaking  of  war  generally, 
and  more  particularly  in  reference  to  hostilities  upon  land,  hold 
that  whenever  the  hostile  attack  is  made  under  the  authority 
of  Government,  it  becomes  an  affair  between  the  two  nations, 
and  no  individual  responsibility  rests  upon  the  actors. 


m  m  I 


i^a  r 


i  1 

f 


'    I 


'    '■  I 


18 


hit 
h 


Thus,  Viittel,  speaking  of  wnr  that  is  vnjust  on  the  part  of 
the  sovereign  who  wjiged  it,  but  luwliil,  because  not  without 
apparent  cause,  and  not  tor  havoc  and  pillage,  says  : 

"  But  as  to  the  reparation  of  any  damage — are  the  military, 
the  general  oflicers  and  soldiers,  obliged,  in  conseciucnee,  to 
repair  the  injuries  they  have  done,  not  of  their  own  wili,  but 
as  i/is(riiincnls  in  the  hands  oftheir  s')vercign  !"  "  It  is  the  du- 
ty of  subjects  to  su|)pos(!the  orders  oi"  their  sovereign  just  and 
wise."  Hcc.  "  WJKMi,  ihcreibre,  they  have  lent  their  assistance 
in  a  war  whieli  is  afterwards  (bund  to  be  unjust,  the  sovereign 
alone  is  guiltij.  lie  ahmc  is  bound  to  repair  the  injuries.  Tlie 
subjects,  and  in  particular  the  militanj,  are  innocent;  they 
have  acted  oidy  from  u  nrccmnij  obedience."  "  (iovernnient 
would  be  inij)ractical)le,  if  every  one  of  its  instrnmcnta  were  to 
weigh  its  connnands,"  »Src. —  fatfcl,  b.  Hi,  c.  11,  sec.  1S7. 

"INolhingofall  this  takes  place  in  a  war  void  oi'  fonn  and 
unhiuful,  more 2>rojirrlij  called  robbery,  being  nndertalen  leidiout 
right — xoithout  so  much  as  apparent  cause.  It  can  be  productive 
of  no  lawful  edect,  nor  give  any  right  to  the  author  of  it.  A 
nation  attacked  by  such  sort  of  enemies,  is  not  under  any  obli- 
gation to  observe  towards  them  the  rules  of  war  in  Ibrin.  It 
may  treat  them  as  robbers.''"' — Vattcl,  b.  Hi,  c.  4,  sec.  68. 

Thus  we  have  ^'' these  two  sorts  of  wars,  laufiil  and  wilauyul,^'' 
carried  through  by  Vattel  to  their  consequences ;  and  all  per- 
sons enffasied  are  entitled  to  have  '*  observed  towards  them  the 
ndes  of  war,'' ^  except  those  engaged  in  "  incursions  committed 
without  apparent  cause,  and  only  for  havoc  and  pillage." 

The  same  position  in  regard  to  the  immunity  of  soldiers  is 
also  maintained  by  Rutherforth  : 

"  The  external  lawfulness  of  wliat  is  done  in  a  war,  in 
respect  to  the  members  of  a  civil  society,  extends  to  public  wars 
of  the  imperfect  sort,  to  acts  of  reprisals,  or  to  other  acts  of  hos- 
tility,^'' ^'c. — B.  ii,  c.  9,  sec.  15. 

And  again  he  says  : 

*'  Neither  the  reason  of  the  thing,  nor  the  common  practice 
of  nations,  will  give  them  any  other  impwiity,  or  allow  them  any 
otherwise  to  obtain  proiicrty  in  what  is  taken,  where  war  has 
been  declared,  than  in  the  less  solemn  kinds  of  war,  which  are 
made  without  a  previous  declaration,"  &c.     "  In  the  less  solemn 


kinds 

lar  di 

tions 

punisl 

consi( 

agent. 


19 


ictice 
any 
r  has 
;hare 
olemn 


kinds  of  war,  wliat  the  members  do  who  act  under  the  particu- 
lar direction  and  autliority  of  their  nation,  is  by  the  law  of  na- 
tions no  ycrsonol  crime  in  them ;  they  cannot,  thon^fore,  be 
punished  consistently  witli  the  law,  for  any  act  in  which  it 
considers  them  only  as  the  instruments,  and  the  nation  as  the 
agent." — Idem,  h.  ii,  c.  9,  sec.  18. 

We  here  leave  this  branch  of  the  case,  believing  that  our 
readers,  from  our  citation  of  authorities,  must  be  satisfied  that, 
if  the  expedition  in  which  McLcod  is  said  to  have  been  engaged, 
was  executed  under  lawful  authority,  he  was  guilty  of  no  per- 
sonal crime  in  the  violation  of  our  territory,  the  destruction  of 
the  boat,  or  the  death  of  Durfce. 

We  now  proceed  to  show  that  the  hostile  attack  took  place 
under  lawful  authority. 

It  should  be  borne  in  mind  that  Canada  is  separated  from  its 
mother  country  by  an  ocean  of  three  thousand  miles.  That  a 
revolution  was  attempted  in  Canada,  and  the  disaffected  of  the 
colony  had  not  only  the  sympathy  of  our  peopk;  generally,  but 
were,  to  a  great  extent,  countenanced  and  succoured  by  our 
citizens  residing  upon  the  borders. 

Under  this  stale  of  things,  the  British  Government  gave  or- 
ders and  authority  to  the  chief  oflicer  in  Canada  for  his  instruc- 
tion and  guidance  in  meeting  the  difficulties  then  presented  and 
anticipated. 

Not  being  able  to  foresee  what  might  take  place,  the  autho- 
rity was  made  as  general  as  the  nature  of  the  case  would  admit, 
and  the  exigencies  seemed  to  require  ;  and  was,  no  doubt,  in- 
tended to  vest  in  the  chief  officer  in  Canada  power  to  do  what- 
ever the  home  Government  would  have  done  under  like  cir- 
cumstances. He  was,  says  the  British  Minister,  "  empowered 
to  take  any  steps,  and  to  do  any  acts,  v/hich  might  be  necessary 
for  the  defence  of  her  Majesty's  territory,  and  for  the  protec- 
tion of  her  Majesty's  subjects." 

This  is  a  power  most  general  and  extensive  in  its  terms. 
The  object  is,  "the  protection  of  her  Majesty's  territory  and 
subjects."  To  insure  this  end,  the  Canadian  officer  is  autho- 
rized to  do  any  act  necessary  for  this  protection  ;  and  this  ne- 
cessity must,   in  the  nature  of  things,    depend    upon  the 


;  h 


i 


Tj 


20 


judgment  nnd  discretion  of  that  officer.  The  authority  does 
not  liiiiil  the  officer  to  any  spcciliod  measures,  or  corilino  his 
acts  to  the  Canadian  territory.  As  England  might,  in  dfCence 
of  her  Canadian  subjects  and  territory,  authorize  a  hostile  at- 
tack upon  theCarohnc,  under  such  circumstances  as  presented 
themselves  to  the  Canadian  authorities,  it  would  seem  to  Ibllow 
that  the  Canadian  officers  liad  power,  under  their  orders,  to 
do  the  same  thing. 

By  saying  that  the  sovereign  of  England  might  authorize 
such  a  hostile  attack  as  was  made  on  the  Caroline,  we  do  not 
intend  to  say  it  would  bo  an  attack  that  could  be  juslilied  to 
the  world.  We  only  intend  to  say  that  it  would  be  so  far  jus- 
lifiable  or  excusable  as  to  furnish  impunity  to  the  military 
acting  under  suclj  an  order. 

We  think  the  construction  we  give  to  this  power  receives 
confnniation  from  IhirUmaque^  pt.  4,  c.  3,  sec.  14.  Speaking 
of  the  power  of  magistrates  or  generals,  this  author  soys: 
"  They  cannot  lawfully  undertake  any  act  of  hostility  of  ilieir 
own  head,  and  without  a  formal  order  of  the  sovereign,  at  least 
reasonabhj  'presumed^  In  cojiscqucnce  of  particular  circumstances. 

But  have  we  a  right  to  scrutinize  and  limit  an  authority  of 
this  kind,  whilst  England  sanctions  the  act  done  under  it, 
and  when  the  object  and  effect  of  such  limitation  is,  to  make 
murder  of  an  act,  which,  under  a  liberal  construction  of  the 
power,  would  render  the  accused  innocentoflhe  slightest  crime. 

In  a  review  of  "  Wheaton's  Elements  of  International  Law," 
we  find  the  following  apt  illustration  of  the  right  of  a  nation  to 
give  its  own  construction  to  its  own  commissions  : 

"If  a  state  extended  its  protection  to  its  lawless  subjects, 
committing  violence  out  of  its  local  jurisdiction,  there  would  be 
endless  disputes  \viih  other  slates,  and  probably  a  great  delay 
of  justice.  On  the  other  hand,  if  an  officer  duly  commissioned 
in  war  by  one  state  were  to  be  punished  by  another  f()r  exceed- 
ingor  deviating  from  the  purport  of  his  commission,  the  commis- 
sioning poicer  cotild  not  be  expected  to  rest  satisfied  with  the  judgment 
of  the  foreign  court  on  the  construction  or  execution  of  its  own  com- 
mission, and  the  dispute  which  must  necessarily  occur  between 


the 


'.>' 


the  Ivvo  powers  would  he  cml)arm.ss('(l  by  a  (jiicslionahh;  puii- 
isluuent,  in  addition  lo  llio  orij^inid  causi' of  (X)U)iilaint." — Jiri- 
tish  and  Forci<fii  Ucvkw,  vol.  ji,  p.  IM. 

England  approved  this  act,  by  not  iinnu'dialcly  disclaim- 
ing it,*  by  knigliling  RlacNab,  the  chici'  pKjjeclor  of  it,  and 
more  recently  by  ollicially  recognising  the  attack  as  one  em- 
braced within  the  powers  eonlerred  npoii  the  (^anadian 
authorities.  ISIr.  Fox,  the  JJritish  ISIinistcr,  in  a  communica- 
tion to  our  Government,  says : 

"  The  transaction  on  account  of  which  McLcod  has  been 
arrested,  and  is  to  be  put  upon  his  trial,  was  a  transaction  of 
a  public  character,  planned  and  cx(;cute(l  by  persons  duly 
empowered  by  her  INIajesty's  colonial  authority  to  lake  any 
steps  and  do  any  acts  which  might  be  necessary  l()r  the  de- 
fence of  her  Majesty's  territories  and  l()r  the  protection  of 
her  Majesty's  subjecMs;  and  tliat,conse(piently.  those;  subjects 
of  her  Majesty  who  engaged  in  that  transaction,  were;  per- 
forming an  actof  puhiic  duty  l()r  wjjich  they  cannot  be  made 
personally  and  individually  answerable  to  the  laws  and  tri- 
bunals of  any  foreign  country." 

But  Judge  CowEN  denies  that  an  approval  by  the  British 
Government  can,  in  any  way,  operate  to  screen  McLcod  from 
the  punishment  due  to  the  crime  of  murder,  for  the  part  he 
is  supposed  to  have  taken  in  the  attack.  To  maintain  this 
position,  the  learned  Judge  goes  into  an  elaborate  citation  of 
authorities,  which,  to  avoid  the  appearance  ol"  injustice  to- 
wards him,  we  here  transcribe  : 

"  An  order  emanating  from  one  of  the  hostile  sovereigns, 
will  not  justify  to  the  other  every  kind  of  [)er(idy.  'J'he  case 
of  spies  has  been  already  mentioned.  An  emissary  sent  into 
a  camp  with  orders  to  corrupt  the  adverse  general,  or  biibe 
the  soldiery,  wouUl  stand  justilied  to  his  immediate  sovereign. 
—  Vdttd,  b.  in,  c.  10,  sec.  180  ;  though  even  he  could  not  le- 
gally punish  a  refusal.  In  respect  to  the  enemy,  orders  would 
be  an  obvious  excess  of  jurisdiction. 

♦'  The  emissaries,  sent  by  Sir  Henry  Clinton,  in  17S1,  to 

*  Burliiimqui  seems  to  consider  such  an  net  of  llie  subordinate  officer  approved, 
unless  tlie  sovereign  olFiciully  dhclaimi  it. — Bxirl.  pi.  4,  c.  3,  sec.  19,  quoted  at 
length  h«t'<i  after. 


93 


seduce  llie  soldiers  of  ilie  Pennsylvaiiiii  line,  falling  into  the 
haudsj  ol  the  Americans,  were  condemned  and  immediately 
executed.  4  Marsh.  Life  of  IVush.  JJOCi,  \st  cd.  Entering  the 
adverse  camp  to  receive  the  Irrai.herous  j)ronosition  of  the 
general  is  an  ollencc  much  more  venial.  It  is  even  called 
lawful  in  every  rnse  as  between  the  sovereign  and  employee. 
Vattd,  I).  Hi,  c.  10,  sec.  181.  Yet  in  the  case  of  Major  Andre, 
an  order  to  do  so  was,  as  between  the  hostile  countries,  held 
to  bo  an  excess  of  jurisdiction. 

"  These  cases  are  much  stronger  than  any  which  can  be 
supf)osed  between  nations  at  peace.  In  time  of  war,  such 
perfidy  is  expected.  In  time  of  peace,  every  citizen,  while 
within  his  own  territory,  has  a.  iloublo  right  to  suppose  him- 
self secure;  the  legal  inviolability  of  that  territory,  and  the 
solemn  pledge*  of  the  foreign  sovereignty. 

'*  The  distinction  that  an  act  valid  as  to  one  may  be  void 
as  to  another  is  entirely  familiar.  A  man  who  orders  another 
to  commit  a  trespass,  or  approves  of  a  fespass  already  com- 
mitted for  his  benefit,  may  be  bound  to  protect  his  servant, 
while  it  would  take  nothing  from  the  liability  of  the  servant 
to  the  party  injured.  As  to  him,  it  could  merely  have  the 
eflect  of  adding  another  delcndant,  who  might  be  made  jointly 
or  severally  liable  with  the  actual  wrong-doer.  A  case  in 
point  is  mentioned  by  Vottcl,  b.  Hi,  c.  2,  sec.  15.  If  one  sove- 
reign order  his  recruiting  officer  to  make  enlistments  in  the 
dominion  of  another  in  time  of  peace  between  them,  the 
officer  shall  be  hanged  notwithstanding  the  order,  and  war 
may  also  be  declared  against  the  oflcnding  sovereign. —  Vid. 
a  like  instance  id.  b.  i,  c.  G,  sec.  75. 

"  What  is  the  utmost  legal  effect  of  a  foreign  sovereign, 
approving  of  the  crime  his  subject  committed  in  a  neighbouring 
territory  ?  The  approval,  as  we  have  already  in  part  seen, 
can  take  nothing  from  the  criminality  of  the  principal  offender. 
Whatever  obligation  his  nation  may  be  under  to  save  him 
harmless,  this  can  be  absolulely  done  only  on  the  condition 
that  he  confine  himself  within  her  territory. —  Vattel,  b.  ii,  c. 
6,  sec.  74.  Then,  by  refusing  to  make  satisfaction,  to  furnish, 
or  to  deliver  him  up,  on  demand  froii^  the  injured  country,  or 
by  approving  the  offence,  the  nation,  says  Vattel,  becomes  an 
accomplice. — Id.  sec.  76. 

"  Blackstone  says,  an  accomplice  or  abettor;  (4  Com.  68  ;) 
and  Rutherforth,  still  more  nearly  in  the  language  of  the  English 
law,  an  accessory  after  the  fact. — D.  ii,  c.  2,  sec.  12.   No  book 


I 


23 


0 

ih 


supposes  ihftf  such  an  net  merges  the  original  ofTeiice,  or  ren- 
ders it  imputuljla  to  the  nation  alone." 

The  rights  <ind  duties  of  nations  are  not,  in  general,  happily 
illustrai(  1  by  referenrn  to  the  rights,  duties,  and  liabilities  of 
individuals.  In  relation  to  Cho  case  of  trespass,  put  by  the 
Judge,  we  agree  that  the  ell'ect  of  unolhrr  person's  approving 
it  might  niako  him  a  trespasser  also,  and  would  not  dischargo 
the  liability  of  him  who  actually  (iommitied  it;  and  the  reason 
is,  that  the  ai)provcr  had  no  more  right  to  make  the  entry  than 
the  aetuid  trespasser. 

We  think  it  cannot  I'ail  to  strike  every  one,  that  the  exam- 
ples given  by  Judge  Cowen,  in  which  the  authorization  or 
approval  by  the  sovereign  cannot  protect  the  criminal,  arc  all 
cases  where  the  act  done  is  criminal  in  itself,  whether  com- 
mitted by  sovereign  ftr  subject.  The  enlistment  of  soldiers  in 
the  dominions  of  another  nation,  without  its  consent,  is,  by  the 
law  of  nations,  a  crime. —  Valtcl,  b.  i,  c.  G,  sec.  75.  It  is  not  the 
less  criminal  if  done  by  the  sovereign  in  person  instead  of  his 
recruiting  ofHcer. 

Spies  also  are  not  the  less  criminal  because  they  arc  autho- 
rized by  their  sovereign,  since  the  sovereign  could  not  himself 
lawfully  act  the  spy. 

Wc  cannot  better  answer  Judge  Cowen  on  this  head  than 
by  transcribing  one  other  of  his  examples,  and  annexing  to  it 
a  quotation  of  his  from  Locke  : 

"  Suppose  a  })rince  should  command  a  soldier  to  commit 
adultcnj,  incest,  or  perjury ;  the  irrincc  goes  beyond  his  constitu- 
tional poiver.^^ 

"  So  says  Mr.  Locke  (on  Gov.  b.  ii,  c.  19,  sec.  239,)  of  a 
king  even  in  his  own  dominions :  '  In  whatsoever  he  has  no 
authority,  there  he  is  no  king,  and  may  be  resisted  ;  for  where- 
soever the  authority  ceases,  the  kifig  ceases  too,  and  becomes 
like  other  men  who  have  no  authority.'  " 

Examples  to  show  that  a  subject  may  not  do  an  act,  with 
or  without  his  sovereign's  authority,  fall  far  short  of  showing 
that  the  act  he  may  do  by  the  direction  of  his  Government, 
may  not  receive  equal  validity  from  a  subsequent  approval  of 


i^.i 


24 

llie  net  by  tlirit  GovcMiiiiKMit,  as  if  it.  h;id  diiected  it  orignnlly. 
Omiiis  rdd/iiihifo  ntrd  trahifur  ct  mnmlato  trqniiiardtur,  Is  a 
maxim  ot'ilio  law. 

\Vc  liavc  ali(>aily,  as  we  lliink,  eslablislicd  the  position,  that 
the  hostile  violation  of  our  territory,  resulting  in  the  destruction 
of  the  Caroline  and  the  killing  of  Durfec,  had  the  same  been 
ordered  by  the  British  (lovernmcnt,  would  have  protected  tiie 
military  engaged  in  it  from  any  [)ersonal  liability.  We  now 
maintain  that  the  subsecjue'it  approval  of  the  attack,  especially 
under  the  circumstances  of  the  original  order  and  the  situation 
of  the  mother  couniry  in  n'lation  to  her  colony,  and  of  Canada 
in  relation  to  our  border,  furnishes  equal  im[)unity  and  protec- 
tion to  all  concerned  in  it. 

Tlu!  authorities  ([noted  by  Judge  Cowen  on  this  head,  as 
we  have  already  shown,  do  not  in  the  slightest  degree  impugn 
the  correctness  of  this  |)osiiion  ;  whilst  the  authorities  we  shall 
now  produce  will  fo'lify  and  i'ully  sustain  it. 

liurlhnaqui  yt.  4,  c.  3,  sec.  IS. — '*  A  mere  prcsimj)tioH  of  the 
will  of  ilie  sovereign  would  not  be  sndicicnl  to  excuse  a  Go- 
vernor or  any  other  oHic(M'  who  should  undertake  a  war,  except 
in  {,'ase  oltu^cessilv,  wiijiont  either  a  general  or  particular  order. 
For  il  is  not  snllicient  to  know  what  part  the  sovereign  would 
])nib.ii)lv  act  if  Ik>  wer(^  consulted  in  such  a  particular  posture 
of  alliurs  ;  but  it  shoidd  rather  be  consid(Med  in  general  what 
it  is  prob;d)le  a  jirince  won  hi  desire  sliouki  be  done,  without 
considling  him,  when  tlie  mattcn*  will  bear  no  delay  and  the 
atfair  is  (lul)i(uis.  Now,  certainly,  sovereigns  will  never  con- 
sent that  tiller  ministers  should,  whenever  they  think  proper, 
undertake  without  their  order  a  thing  of  such  importance  as 
an  oili'usive  war,  which  is  the  proper  subject  of  the  present 
inquiry." 

Sec.  It). — "  In  these  circumstances,  whatever  part  the  sove- 
reign would  have  thought  projjcr  to  act  if  he  had  been  con- 
sulted ;  and  whatever  success  the  war  undertaken  without  his 
order  may  have  had  ;  it  is  left  to  the  sovereign,  whether  he  will 
rallfij  or  condemn  (he  act  of  his  ministers.  If  lie  ratifij  it,  this 
approbation  renders  the  war  solemn,  bij  rejlecting  hack,  as  it  were, 
an  authority  vpon  if ;  so  that  it  obliges  lh(!  whole  commonwealth. 
But  if  the  sovereign  should  condemn  the  act  of  the  Governor, 
the  hostilities  committed  by  the  latter  ought  ,0  jiass  for  a  sort  of 


Si 


26 


as 


)VC- 

pon- 
bis 

uhis 
\crCf 
lllh. 
lior, 
V  of 


robbery,  llie  fiiult  of  wliidi  by  no  iiir;ins  fiffncts  tbe  State,  pro- 
vided tbc  CJoveriior  is  delivered  ii|)  tirid  piinisbed  according 
to  tbe  law  ofibe  country,  a,'  i  proper  satisfaction  bo  made  for 
tbe  (bimages  sustained." 

8  Peters,  522. — Story,  speaking  of  tbc  seizure  of  an  Ameri- 
can vessel  and  cargo  by  a  i^panisb  vessel,  says  : 

"  If  sbo  bad  a  commission  under  llie  roynl  autbority  of 
Spain,  sbc  was  beyond  <jU(;stion  entitled  to  make  tbc  seizure. 
II  she  bad  no  sucb  autbority,  iln.n  sbe  must  be  treated  as  a 
non-commissioned  cruiser,  entitled  to  seize  for  tbc  benefit  of 
ibc  crown  ;  whose  act,  i/adojjtcd  and  ochiowlrdged  by  the  crown, 
or  its  conqu'tcnt  authorities,  become  equally  binding.  Nolbing  is 
better  settled,  botli  in  England  and  America,  tban  tbe  doc- 
trine tbat  a  non-commissioned  cruiser  may  seize  for  tbe  benefit 
of  tbc  (jovennnent ;  and  if  bis  acts  arc  adopted  by  tbe  Go- 
vernment, tbe  j)ropcrty,  wben  condemned,  becomes  a  droit  of 
tbe  Govennncnt." 

Upon  tbese  autborities,  and  for  tbe  reasons  before  stated, 
we  bave  coine  to  tbe  conclusion,  tbat  tbe  approbation  of  tbe 
attack  by  tbe  P>ritisb  Government  has  removed  all  doubt 
about  tbe  sufficiency  of  tbe  original  authority  of  tbe  Canadian 
officers. 

We  bave  thus  far  discussed  this  matter,  as  if  tbe  question, 
as  to  the  relation  in  which  the  United  States  Government 
stands  to  the  British  Government,  in  the  matter  of  this  attack, 
was  an  open  one — one  in  which  the  judiciary  of  tbe  country 
is  at  liberty  to  decide  by  a  direct  application  of  tbe  principles 
of  the  law  of  nations  to  the  facts  as  they  might  be  established 
by  proof;  and  in  this  view  of"  tbe  matter,  we  feel  confident  of 
having  established,  by  the  fads  and  tbe  law,  tbat  the  attack 
upon  the  Caroline  was  made  upon  sufficient  autbority  from  the 
British  Government ;  or,  if  tbe  authority  was  in  any  respect 
equivocal,  that  it  has  been  ratified  by  the  British  Government, 
so  as  to  require  of  the  judiciary  of  the  country,  upon-  \.he  facts 
and  the  laio,  a  judgment  establishing  the  perfect  impunity  of 
the  military  engaged  in  the  expedition. 

We  now  propose  to  show  that  the  character  of  the  expedi- 
tion against  the  Caroline,  and  the  relation  m  which  the  two 
4 


I   v; 


mi' 

m 

iff 

m 


26 


coiiiiliics  stand  in  iclrn-iicc  to  it,  lins  hern  settled  aiid  diridnf. 
Iw  our  ( lovcrmiKMil  to  he  that  ol' "  lair/'ii/  //v/r"  of'i/ir  '*  iiupnirct 
sort ;"'  Mild  lliJit  coiiils  ol'iusiifc  Jin-  not  at  liberty  to  pionoiinec 
a  dillerent  jiidmnent  (Voin  that  pronouneed  by  the  ( Jovernment 
iiflbi.'  count ry. 

Man  our  (loviMinnent  deterniiiied  the  reliiiion  in  which  thn 
two  connliies  stand  to  t>acli  other  in  relerencc  to  the  iiii|iiiiiiiy 
lo  whii'h  McLiod  is  entitled,  as  l)eiii<^  one  ol"  this  military 
(>\|)C(litioii  ? 

in  May.  IS.'IS,  shortly  alter  the  ilestiiiction  ol*  tli(>  Caroline, 
in  a  coninmnicalion  to  the  Hrilish  (!ovt;ninieiil,  our  INlinister, 
Mr.  Stevenson,  <'liaracteri/,ed  llu;  nttiick  as  "  an  invasion  of 
the  territory  and  sovereiLMity  olan  inde|)endent  nation  by  an 
Jiniicd  force' ofa  iViendly  Towim;"  iind  Mr.  Webster,  Stcio- 
tary  of  Stale,  in  his  letter  to  Mr.  Kox  of  the  XJllh  April,  IS'll, 
says:  "tlu"  (lovernnient,  of  the  United  States  lias  not,  changed 
the  opinion  which  it  lias  heretofore  e\press(>d  to  her  Maji'sly's 
(lovernnient,  of  the  clidmctcr  of  the  acl  of  desiroyinu;  tlio 
Caroliiii'." 

C^an  langnanc  bt.;  belter  adapted  to  tleliiu;  the  first  acl  of 
war  by  one  nation  upon  another,  where  tlieic^  has  been  no 
previous  deelaraiion  of  war,  than  that.  oinp!(»yed  by  Mr.  Sle- 
venson  tt)  charai'tcri/.e  this  attack  by  (ireat  Britain  ? 

So  loiif^  ago,  then,  as  May,  LSIIS,  the  Mxeonlive  Depart- 
ment of  our  (lovcnniionl  deKMiiiined  that  the  attack  n|)on  the 
Caroline  was  an  ai-t  of  war,  and  so  far  as  that  act  of  hostility 
was  concerneil,  placed  the  British  Ciovernincnt  in  that  rela- 
tion to  onr  own. 

Ill  the  letter  of  Mr.  VVi'bster,  before  referrcMl  lo,  he  recites 
the  ground  upon  which  the  Jirilish  (lovernment  jjlaee  the 
hostile  attack,  so  I'ar  as  the  military  enij;agc(l  in  it  are  con- 
cerned, and  the  assent  of  our  (iovcrnmcnt  to  this  same  view  of  the 
matter. 

Mr.  Webster  in  his  letter,  says  : 

"  The  President  inclines  to  lake  it  for  granted  that  the 
main  purpose  of  the  inslrnetion  was,  to  cause  it  to  be  siiini- 
tied  lo  the  Government  of  the  United  States  thai  the  attack 


hi 


h'llcs 
!  the 
coii- 

\)fthe 


the 
liiriii- 
Itack 


27 

on  the  striinil)ont  •Cnrolinc'  vvns  nn  act  (fnuhlii;  I'orco,  done. 
I)y  thn  lliitish  cdloiiifil  Miithotitirs,  tirid  liiily  iccogtiisrd  hy 
lh(!  (iiift'ii'H  (lovcnmirni  .-il  home;  ;iii(l  thiii,  ((in.scfiiiniily, 
no  it)(livi<hi!il  conccitii'il  in  ihr  Ir.'iiisiK-lion  r;in,  .'i('(:(ii(liii,i>  lu 
lh<^  jilsl  |)i'iM('i|ilc  of  the  liiws  of  iiMlioiis,  ix;  lirld  pcisoiiidly 
uiis\viM','d>l(<  ill  die  nrdiiiiity  coiiiim  ol'  l.iw,  uu  liir  ii  private 
olU'iicc;  iiiid  diiit  ii|MHi  this  avowid  of  her  Miiji  sly's  (luvcni- 
ini-iil,  Alexander  Melieod,  now  iinprisoned  on  imi  iiKhelnietit 
lor  iiiiir(h-r,  alle^i^ed  to  havt*  heen  eonnnittcd  in  that  attack, 
ont^dit  lo  he  ndeased,  hy  snch  proeeechngs  i\»  are  UHual  and 
are  siiilahN-  to  the  caHe." 

After  thin  recital  of  the  position  in  which  tlu!  British  (Jo- 
verninenl  pla('«\s  iIk;  iJiall(;r,  Mr.  \Vel>sl<;r,  speakin/,,  in  holialf 
dConr  ( Jovernnient,  says: 

••  'I'Ik!  coimniinication  oltla!  Ijict  that  thfi  deHtrnctinriof  the 
'('aroline'  was  an  a<'t  olpiihlie  lorce,  hy  the  hritish  •mlliori- 
ties,  hciii^  ("ormally  made  to  tlic^  (Jonernnieiit  ol  the  United 
Slates  hy  Mr.  I'\)x's  note,  the  case  assumes  n  di'cided 
.aspect. 

"The  (jov(>rnmeiit  of  the  United  Stales  (ailertain  no  douht 
tliat,  after  this  avowal  of  tli<!  transaction  as  a.  pnhlic;  tr;  nsae- 
tion,  anthori/.i-d   and    nndeitaken  hy  tli(;   iiritish  aiithoi  ilies, 


individuals  conccMiied   in  it  on/^lit  not,  l)y 


tl 


"•   I 


»riiicii)k  s  ol 


)nl)lie  law  and  the  «!;(!tieral  iisa^e 


of  civili/(!d  States,  to  h 


lohhai  |)ersonally  respoiisihle,  in  the  ordinary  trihiinais  of 
law,  for  their  particij)a.lion  in  it.  And  tli(!  ['resident  pn-siiines 
that  it  can  hardly   he  neeessary  to  say  that  tla;  American 


)eople,  not  distrustful  of  I  heir  ahilily  to  redr(;ss  piihlie  wroni^s 
hy  piihlie  means,  cannot  <lesir(!  tlit;  punishment  ol"  individuals, 
when  the  act  eoin|)lain(;<l  of  is  declared  to  have  heen  an  aet 
of  the  (lovernment  itself." 

Inaletlerof  instructions  to  the  Attorney  (I(aieral,  which 
was  also  (•ommuniea.fed  to  Mr.  l''ox,  Mr.  W(;hster  says  : 

"That  an  individual  liiiniiiii,^  part  of  a  puhlie  l()rc(;  and  act- 
ing under  the  aiilhorily  of  his  (loviaiiment,  is  not  lo  h(!  held 
answerahh;  as  a  private  trespasser  or  trialeliietor,  is  a  [)ririciplc 
of  pul»li("  law  sanelioiKMl  hy  the  usages  of  all  civilized  natfons, 
and  which  the  (lovernmenl  of  the  United  States  has  no  inclina- 
tion to  dispute." 

Judge  CowKN  makes  a  criticism  upon  the  communicat.on  of 


'  ,1 


i' 


■\ 


I'.-t 


r:i 


28 

the  British  Minister,  which,  perhaps,  requires  a  passing  re- 
mark.    He  says : 

•'  Even  the  British  Minister  is  too  just  to  call  it  war  ;  the  Bri- 
tish Government  do  not  pretend  it  was  war.'" 

As  words  in  a  promise,  indicative  of  an  undertaking  to  war- 
rant, amount,  in  law,  according  to  "  Coweii's  Treatise,''^  to  a 
warrarity,  without  the  use  of  the  term  warrant,  so,  in  the  letter 
of  the  British  Minister,  a  description  of  hostilities  that  by  the 
law  of  nations  con;  titutes  "imperfect  war,"  is  etjuivalentto  the 
assertion  in  terms  that  it  was  war  of  the  imi)crjtct  sort. 

But  the  Judge,  evidently  not  feeling  much  confidence  in  his 
criticism  upon  the  British  Minister's  communication,  after- 
wards seems  to  admit  that  our  Government,  so  far  as  it  could, 
had  decided  the  question  in  regard  to  the  character  of  the  hos- 
tile attack,  and,  consequently,  in  regard  to  the  individual  lia- 
bility of  those  concerned  in  it. 

The  language  oi  the  Judge  is  this : 

"  But  it  is  said  of  the  case  at  bar,  here  is  more  than  a  mere 
approval  by  the  adverse  Government;  that  an  explanation 
has  been  demanded  by  the  Secretary  of  State  ;  and  the  British 
Ambassador  has  insisted  on  McLeod's  release,  and  his  coun- 
sel claim  for  ihc  joint  diplomacy  of  the  United  States  and  En- 
gland some  such  effect  on  the  powers  of  this  court  as  a  certiorari 
from  us  would  have  upon  the  county  court  of  general  sessions. 
It  was  spoken  of  as  incompatible  with  the  judicial  proceedings 
against  McLeod  in  this  State;  as  a  suit  actually  pending  be- 
tween the  two  nations,  wherein  the  action  of  the  General  Go- 
vernment comes  in  collision  with,  and  su[)ersedes  our  own. 

"  To  such  an  objection  the  answer  is  quite  obvious.  Diplo- 
macy is  not  a  judicial  but  executive  function  :  but  the  objection 
would  come  with  the  same  force,  whether  it  were  urg  d  against 
proceedings  in  a  court  of  this  State,  or  the  United  States.  ' 

But  the  Judge  insists  that  "  the  Executive  power  has  charge 
of  the  question,  in  its  national  aspect  w«/(/;"  by  which,  from 
the  context,  we  must  understand,  that  the  two  Governments 
may  agree  that  the  hostile  attack  wasof  that  character  which 
furnishes  impunity  to  the  military  concerned,  yet  that  the 
courts,  Federal  and  State,  may  determine  otherwise,  and  in- 


!•« 


S» 


flict  capital  punishment  upon  the  ofl'endcr.s  !  How  "the  exe- 
cutive power  has  chari>(;  of  the  question  in  its  national  aspect," 
and  yet  its  decisions  be  void  of  all  efficiency  and  (>ll('ct  upon 
the  subject  dcc'ulcd  vjmn,  is,  wo  conless,  beyond  our  compre- 
hension. The  General  (Jovernment  cnnnot,  it  is  true,  after 
deciding  the  (juestion,  issue  any  mandiile  to  a  court  to  cnrry 
its  determination  into  ellect,  or  remove  a  cnuse,  or  withdraw 
a  suitor  or  criminal  Irom  ihe  custody  of  the  courts.  But  its 
decision  becomes  binding  upon  all  courts  or  tribunals  wliere 
the  question  arises  ;  and  thus  the  Executive  departniont  of  the 
Government  "  has  charge  of  the  (juestion  in  its  national  as- 
pect," and  the  law  makes  its  (/rt-iivwt  nil-powerful  and  efficient. 
It  can  hardly  be  necessary  to  resort  to  any  course  of  reason- 
ing, or  to  the  citation  of  authoriles,  to  show  tiiat  the  Executive 
of  the  United  States  possesses  all  the  power  in  regard  to  the 
matter  in  <[uestion  that  usually  belongs  to  the  Executive  de- 
partment of  every  (lovernment. 

"  The  command  and  application  of  the  public  force  to  exe- 
cute the  law,  maintain  peace,  and  resist  foreign  invasion,  are 
powers  obviously  of  an  Executive  character,  and  require  the 
exercise  of  (lualities  so  characteristical  of  this  department,  that 
they  have  always  been  exclusively  appropriated  to  it,  in  every 
well-regulated  Govcnmient  upon  earth," — 1  Keiu''s  Com.  28iJ. 

The  memorable  attack  of  the  iiritish  ship  of  war  Leopard, 
Capt.  Humphreys,  upon  the  frigate  Chesapeake,  Capt.  Barron, 
in  which  several  American  sailors  were  killed,  became  the 
subject  of  discussion  between  the  two  Governments,  and  re- 
sulted in  an  adjustment,  in  which,  amongst  other  things,  En- 
gland ofTered  **  the  American  Government  a  suitable  pecu- 
niary provision  for  the  suflerers  in  consequence  of  the  attack 
on  the  Chesapeake,  including  the  families  of  those  seamen  who 
unfortunately  fell  in  the  action,  and  of  the  wounded  survivors." 
Could  Captain  Humphreys  afterwards  have  been  proceeded 
against  in  a  court  of  our  country,  and  held  personally  respon- 
sible, notwithstanding  the  Executive  department  of  our  Go- 
vernment had  settled  the  whole  matter  with  the  British 
Government  ?    There  cannot  be  a  doubt,  as  we  think,  that  this 


I  ^ii 


4' J'  ' 


I 

I 
I 

11 


I 


i 


.!!,    If" 


r 


30 

ndjiistnirnt of  tlir  in;itt(M-,  "in  its  iiMlioniil  aapocl,"  vvns  nii 
ji(ljiislincMt  (iIiIk!  miillcr  in  nrri/  iiH|)(icl,  uiul  Uiiidiim  >i|'**"  ""' 
coiirls  iiiid  trilxiiiMls  ol'llut  coiiiiIiy* 

This  |)iiiici|)li'  liiis  been  jiKliciiilly  rcrou^niscd  in  l<'ni>liMi(l. 
'riuM(i  wlicrc  llic  Mxcciilivt!  dcpiirlniciil,  (»("  llic  ( Jovcniinciit 
li;is  d)M(Miniii('d  llic  nd.-ilioii  in  wliicli  llic  Kiilisli  (iovcriiiiKMit 
st.'iiuls  lowiinls  Jiiiy  oilier  coiiiiHy,  in  rcgiird  lo  lioslililics,  such 
decision  is  conclusive,  nnd  in  all  ihc  courts  pnuiludoa  any  fur- 
ther c\!iniiii:iiion  or  invitation  of  llu;  (|iieslion. 

li  Ctnup.  I{.  (il.  This  was  a  case  of  insurance  tried  l)el()ro 
Lord  l<illenhorouL>li,  and  the  cause  luriKMJ  upon  iIk;  <piestion 
\vht>llicr  the  trade  lo  St.  Domingo  was,  at,  lluit  lime,  with  a 
country  iit  peace  with  I'aii^land. 

Lord  FJIrnhoroiio-h.  "  In  the  present  situation  of  th(^  world, 
th(Miaiional  characler  of  dilltMtnt  places,  niust  from  lime  to 
time  l)t!  diMcMiiiiiuMl  hy  conrls  of  justice.  We  had  lately 
oo(Nision  to  try  the  national  character  of  Oorfu.  'I'lie  most 
potent  evidence  upon  such  a  suhjtM't  is  t/w  declaration  of  the. 
State;  and  iflht;  Slate  recoonises  any  placid  as  not  hein;^'  in 
the  relation  of  hoslilily  to  this  country,  that  is  ohiiifatonj  on 
courts  of  justice.'''' 

This  cause  afterwards  came  hel'oro  the  KiiiL^'s  JJench,  and 
is  reported  in  15  East,  SI.  Lord  Kllcnhorough  ilelivcriny;  the 
opinion  of  the  court,  says : 

*'  This  is  a  <i;rave  (|uestion,  and  depends  in  a  groat  measure 
upon  the  consideration  of  the  Orders  in  Council  which  have 
been  relerred  lo.  I  ai;ree  with  the  Master  of  the  Rolls  in  the 
case  of  the  Vel'ican,  that  it  helonifs  to  the  (ioverinucnt  of  the  coun- 
tni  to  determine  in,  what  relation  of  peace  or  war  anij  other  country 
stands  towards  it,  aiul  that  it  would  ho  ■uns<ife  I'or  courts  of  jus- 
tice to  take  upon  them,  without  that  authority,  to  decide  upon 
those  rtdations. 

"But  when  the  Clrown  has  decided  upon  the  relation  of 
peace  or  war  in  which  a.iiotli(>r  country  slaiids  to  tl<is,  there  is 
an  end  of  the  ipiestion;  and  in  ther/Z^sr/^ct'  of  any  expr'>ss  [)ro- 
inuli>alion  of  the  wid  of  the  sovereign  \\\  ih.it  respect,  it  may 
be  collected  from  other  acts  of  the  Stale.  TIk;  Master  of  the 
Rolls,  in  the  case  of  the  Pelican,  lays  down  the  rule  generally 
♦  that  it  belongs  to  the  Government  of  the  country  to  determine  in 


wh 


»r    J>>  I 


31 


wliut  roliiliou  rniy  otlior  coiuilry  sIhikIh  I(»w;i,i(Im  il,  undthdl  the. 
Court$  of  justicr  ((tniiitt  diriilc  ujnm  t/n:  jxiiiU  ;^  hy  wliicli  1  iiiiiisl 
llli(lcrsl;iii(l  liiiii  lo  have  s;ii(l  llial  llicy  ciniiiot  dccidr  tidv(:rin:bj 
to  lli*Mlccliir:ili(Mi  oi' llic  sovci'ciL^ii  iipon  ihai  point. 

•'  For  vvaiil.  ol'a  (Icclaialioii  oIiIk;  (/'rowii  ai  ono  period,  dil- 
foronl  Vi^rdiclH  \v<m<!  ^ivrn  in  dilli-tcn;  causes,  in  resprt;!.  lo 
coiiiinercial  adveiilnres  olllm  same  descriplion  lo  I  hiiiihuru;/i. 
IJiil  courts  and  jiu  ies  cannot  do  otherwise  than  deci(h!  xu:uii,- 
diiin  (lUrifota  cl  inolmlit.  in  such  particular  cases  vvith(Mit.  regard 
toolhcr  proof  in  olher  (;a.uses." 

This,  let,  it.  I)(!  r(;in<!nil)eri'd,  was  a  private;  iitij^alion  hetweeti 
individuals;  and  thecoiul  held  thai,  the  det<-rinination  of  the; 
(iow77i//u'wy,  as  to  the  relation  in  which  another  (Jovennnent 
stood  towards  it,  controlled  the  ri^dits  o("  the  parties  litigant, 
and  jHit  an  "rw//  to  the  i/urstlnn.^^  J  low  much  stronger  is  llin 
r<'asoii  l(»r  the  application  ol  the  rnh;  to  onr  coiuitry  and 
(lov(!rnnient. 

Without  such  a,  rule,  ronllict  and  <'ollision  arise;  l)etW(;cn 
tin;  Mxc(;utive  and  judicial  hianches  of  th(;  (Jeneral  (Jovorn- 
inont,  and  Ixjtwecn  the  <Jen<;ridan(l  State;  (M)V(;rntiients. 

Mr.  Huchanan,  of  the;  S(;n!ite,  has  well  (les(;ril)(;d  the;  conflict 
which  su(;h  adverse;  de;ci.sie)ns,  l)ctwe;e'n  the;  Mxe'cntive  and 
juelicial  departments  of  the  (loveraincnt,  will  preiducc: 

"  The;  juelicial  aiithe)rity  will  he;  ein  one-  siele;  e)f  the;  epiestiofi, 
aiiel  the;  Kxe;cutive  ()!e)ve'rnine'iit  e»ii  the;  other.  Whilst  the  ju- 
die;ia.ry  ele;e:iele;  that  Me;Iie;e)d  is  resj)onsil)le;  in  the  (;riininal 
ce)urls  e)f  Ne;w-Ye)ik,  M«  Sicrdanj  dccidta  (lutl,  he.  in  nut.  Jiy 
[)rejuelging  this  pe-neling  juelie;ial  e|ue;sliejn,  the;  Se;cretary  has 
plae;cd  himself  in  an  awkwarel  elile;uitiia,  sheailel  the  Supreme 
Ceiurte)!' Ne;w-Ye)rl<  eh'te-rinine;  that  the;  re'cogniuoii  atiel  jastili- 
catie)!!  hy  the;  IJritish  (ie)ve;rume;nt  ejf  the;  capture;  e)f  the;  (Jaro- 
Jino  deK;s  ne)t  release  Me;Le!e>d  frean  [)ersonal  res|)e)nsihility." 

The;  moelo  e)f  rcincelyiiig  this  dillie;ulty,  anel  preventing  such 
ce)nllicts  in  the;  twe)  departments  of  (jovc'rntnent,  suggested  by 
Mr.  Buchanan,  is,  we;  ce)nfe;ss,  me)sl  extraoreliriary.  It  is  that 
the  Secrt;tary  of  State,  r(;prescuiing  the  executive  department 
of  Cioveirnment  shall  suspeuel  the  eleeisie)n  e)fa  epiestion  pend- 
ing with  a  feaeigu  (Ie)vernme!nt  until  tliej  ejuestioti  shall  have 
been  judicially  decided ;  and  this  course  is  suggested  even 


^ 


%    ;| 


y 


mI 


i 


as 


in  a  proceeding  where  the  Govcrnmeut  is  not  a  party,  and 
where  a  decision  may  be  delayed  until  those  interested  in  the 
question  see  fit  to  bring  the  matter  to  a  close  ! 

Our  remedy  for  what  Mr.  Buchanan  calls  this  "  awkward 
dilemma,"  is,  the  rule  which  prevails  in  England:  when  the 
Executive  Department  has  decided  a  question  between  our 
own  and  a  foreign  Government,  which  properly  belongs  to  the 
Executive  Department  to  decide,  "courts  of  justice  cannot 
decide  adversely."  Such  a  rule  produces  consistency  and 
harmony  in  every  department  of  the  General  Government,  and 
prevents  all  collision  with  the  Judicial  Departments  of  the 
State  Governments.  Without  such  a  rule,  the  intercourse  of 
our  Government  with  other  nations  becomes  empty  diplomacy, 
where  national  matters,  discussed,  agreed  on,  and  settled  by 
the  proper  Executive  Department,  are  not  only  disregarded 
by  the  Judicial  Department  of  the  Government,  but  are  per- 
fectly annulled  by  adverse  decisions  and  judgments,  and  exe- 
cutions carrying  into  effect  those  judgments. 

If,  in  England,  the  determination  of  the  Government  as  to 
the  relation  in  which  another  Government  stands  to  it,  shall 
control  the  rights  of  individuals,  in  a  litigation  with  which  the 
Government  is  not  the  most  remotely  connected,  and  in  which 
the  public  has  no  interest,  how  much  stronger  is  the  reason 
for  applying  the  rule  to  criminal  courts  ;  especially  when  the 
guilt  or  innocence  of  the  accused  is  made  to  depend  upon  the 
decision,  as  to  the  relation  in  which  another  Government 
stands  to  our  own,  in  a  hostile  collision,  where  the  accused 
was  an  actor,  unconscious  at  the  time  of  the  possibility  that 
the  part  he  took  could  subject  him  to  the  imputation  of  crime.'' 

But  this  principle  has  received  the  sanction  of  the  highest 
Court  of  our  own  country. — 3  Wheat.  634. — The  U.  S.  vs. 
Palmer  and  others. 

This  was  an  indictment  for  piracy,  and  grew  out  of  a 
foreign  civil  war,  in  which  Palmer  and  others,  of  the  crew  of  a 
vessel  of  the  revolutionary  party,  attacked  a  vessel  of  the 
other  party.  Palmer  afterwards  coming  to  the  United  States 
was  arrested  and  indicted  for  piracy  committed  in  that  attack. 


w  *>  > 


!■ 


m. 

a 

J)fa 

Ithe 

[tes 

ck. 


33 

Several  questions  arose  upon  the  trial  and  came  before  ihe 
United  States  Court. 

Chief  Justice  Marshall  delivered  the  opinion  of  the  Court, 
and  in  the  course  of  that  opinion  fully  recognised  the  right  of 
the  Government  to  dispose  of  all  questions  with  foreign  na- 
tions, and  the  duty  of  the  courts  to  adopt  the  determination  of 
the  Government  as  the  basis  of  their  decision  in  all  questions 
that  might  arise. 

"Those  questions,"  says  Marshall,  "which  respect  the  rights 
of  a  part  of  a  foreign  empire,  which  asserts  and  is  contending 
for  its  independence,  and  the  conduct  which  must  be  observed 
by  the  Courts  of  the  Union  towards  the  subject  of  such  section 
of  an  empire  who  may  be  brought  before  the  tribunals  of  this 
country,  are  equally  delicate  and  difficult.  Such  questions 
are  generally  r aihcr  jJoliticol  than  legal  in  their  character." 

"  The  proceedings  in  courts  must  depend  so  entirely  on  the 
course  of  the  Government  that  it  is  difficult  to  give  a  precise  an- 
swer to  questions  which  do  not  refer  to  a  particular  nation. 
It  may  be  said,  generally,  that  if  the  Govcrnmeiit  remains  r\eyx' 
XvdA.,  and  recognises  the  existence  of  a  civil  war,  its  courts  connot 
consider  as  criminal  those  acts  of  hostility  which  war  authorizes, 
and  which  the  new  Government  may  direct  against  its  enemy. 
To  decide  otherwise  would  be  to  determine  that  the  war  pro- 
secuted by  one  of  the  parties  was  unlauful,  and  would  be  to 
arraign  the  nation  to  which  the  court  belongs  against  that  party. 
This  ivould  transcend-  the  limits  prescribed  to  the  Judicial  Depart- 
ment.^^ 

The  saine  principle  was  also  recognised  in  a  case  4  Wheat. 
52.  F.  63,  Chief  Justice  Marshall  again  says  :  "  The  Govern- 
ment of  the  United  States  having  recognised  the  existence  of  a 
civil  war  between  Spain  and  hercolonies,  but  remaining  neutral, 
the  courts  of  the  United  States  are  homid  to  consider  as  laioful  those 
acts  ivhich  tear  authorizes,  and  which  the  new  Governments  of 
South  America  may  direct  against  her  enemies." 

Upon  this  principle  it  would  seem  to  follow  that  our  Govern- 
ment having  determined  that  the  attack  upon  the  Caroline 
was  an  act  of  war  "  the  Courts  of  the  United  States  are  bound  to 
6 


'•i 


<  > 


-    V! 


34 


consider  as  Inioful  those  acts  (of  the  attacking  parly)  which  war 
authorizcs.^^ 

7  Wheaton,  283.  This  was  a  libel,  filed  in  behalf  of  the 
original  Spanish  owner,  against  certain  merchandise  alleged 
to  have  been  piratically  taken  from  a  Spanish  vessel.  The 
defence  was,  that  the  property  was  taken  by  a  vessel  belong- 
ing to  the  revolutionary  ])arty  of  Buenos  Ayres,  and  duly 
commissioned  by  their  government. 

Taswell,  of  counsel  for  the  claimants,  insisted  that  it  was 
not  surticient  that  our  government  recognised  the  existence  of 
a  civil  war  there.  That  until  the  government  of  the  United 
States  acknowledged  Buenos  Ayres  as  a  sovereign  and  inde- 
pendent government,  her  ships  could  not  be  considered  by 
our  courts  national  ships.  He  conceded,  however,  that  such 
questions  belong  to  the  government  \.o  decide.  "  Sovereign 
rights,"  says  he,  "  may  be  settled  not  only  in  the  federal 
courts  but  in  the  Slate  courts,  and  to  guard  against  the  effects 
of  a  conflict  of  opinion  in  such  cases  between  the  different 
local  tribunals,  appeals  are  brought  from  the  State  courts  to 
this  court.  It  would  be  in  vain,  however,  to  translate  a  cause 
here,  from  the  State  cour's,  if  this  court  might  decide  it  dif- 
ferenthj  iVom  the  other  dciiartmcnts  of  the  government ^ 

"  This  must  not  be,  however  ;  the  people,  though  sovereign, 
can  have  but  one  will,  and  that  will  must  be  spoken  by  all 
their  agents,  or  our  government  is  a  many  headed  monster.  The 
question,  then,  at  last  results  in  this :  In  what  department  of 
the  government  does  this  will  in  relation  to  foreign  stales  re- 
side ^  for  wherever  it  does  reside,  that  will  must  be  littered  here, 
or  we  shall  have  two  conflicting  wills  on  the  same  matter. 
This  does  not  impugn  judicial  independence.  The  judiciary 
are  not  independent  of  the  law.  They  utter  the  legislative 
will  of  the  people  when  declared  by  the  legislature.  They 
pursue  its  executive  icill  lohen  communicated  by  the  executive  depart' 
mcnt.     All  nations  have  felt  the  necessity  of  such  a  course." 

Judge  iSW)/,  (p.  337,)  upon  this  point  of  the  case,  says:  "The 
objection  is  urged  that  Buenos  Ayres  has  not  yet  been  acknow- 
ledged as  a  sovereign  independent  government  by  the  executive, 


expn 
Unite 


35 


eimi, 
jy  all 
The 
ent  of 
es  re- 
here, 
liter, 
iciary 
ative 
They 
cpart- 
rse." 
'The 
now- 
cutive, 


or  the  legislature  of  the  United  iStates,  and  therefore  i»  i  I 
entitled  to  have  her  ships  of  war  recognised  by  our  courts  fM 
national  ships.  We  have,  in  former  cases,  had  occasion  to 
express  our  opinion  on  this  point.  The  Government  of  the 
United  States  has  recognised  the  existence  of  a  civil  war  be- 
ll tween  Spain  and  her  colonies,  and  has  avowed  a  determina- 
tion to  remain  neutral  between  the  parties.  Each  party  is 
therefore  deemed  by  us  a  bclligerant  nation,  having,  so  far  as 
t-  concerns  us,  the  sovereign  right  of  war,  &c.,  and  as  such 
must  be  recognised  by  our  courts  of  justice  until  Congress 
shall  prescribe  a  different  rule.  This  is  the  doctrine  hereto- 
fore asserted  by  this  court,  and  we  see  no  reason  to  depart 
from  it." 

The  duty  of  the  court  to  follow  and  adopt  the  decision  of 
its  government,  in  all  matters  relating  to  foreign  nations,  was 
again  more  recently  asserted  by  the  United  States  Court 
in  a  case  where  a  question  of  national  boundary  incidentally 
arose. 

2  Peters.  Rep.  307.  Chief  Justice  Marshall  says,  "  in  a 
controversy  between  two  nations,  concerning  national  boun- 
dary, it  is  scarcely  possible  that  the  courts  of  either  should 
refuse  to  abide  by  the  measures  adopcd  by  its  own  governmctit. 
There  being  no  common  tribunal  to  decide  between  them, 
each  determines  for  itself,  ou  its  own  rights ;  and  if  they  can- 
not adjust  their  difference  peaceably,  the  right  remains  with 
the  strongest.  The  judiciary  is  not  that  department  of  the 
government  to  which  the  assertion  of  the  interests  against 
foreign  powers  is  confided,  and  its  duty  commonly  is  to  decide 
upon  individual  rights  according  to  those  principles  which 
the  political  departments  of  the  natioii  have  established.^^ 

Again,  p.  309,  "  If  those  departments  which  are  entrusted 
with  the  foreign  intercourse  of  the  nation,  which  assert  and 
maintain  its  interests  against  foreign  powers,  have  unequivo- 
cally asserted  its  rights,  it  is  not  in  its  own  courts  that  this  con- 
struction is  to  be  denied." 

We  have  now  concluded  our  examination  of  the  great 
principles  of  national  law  involved  in  the  case  o{  McLeod,  and 
we  feel  great  confidence  in  saying  we  have,  by  the  most 
ample  authority,  maintained,  1st.  That  a  hostile  attack  and 


li 


1  'L' 


;! 


•   . 


36 

violation  of  our  territory,  in  liino  of  general  pence,  by  the 
aulliority  oi'tliu  Biilisli  (iovcriiiiiciit,  wiili  aiipiiKMil  ciiiisc,  is 
no  liir  a  '*  hnij'ul  uar^  otllic  "  iinprrfnt  sort,''  lis  lo  luiiiisli  im- 
[juiiily  lo  llic  inililaiy  ciiqa/^cd  in  it. 

2nd.  That  ihc  instructioiiH  given  lo  the  Ciovenior  or  (.liicf 
ofliccr  ol'Oaiuula,  uikIit  tlio  circtiinslances  and  situation  of 
thut  colony,  cotitaiiuul  siiiliciciii.  aiiihoiity  to  lc<,rali/e  the  ut- 
tack  ;  or,  if  thut  be  (iouhtful,  then, 

Jkl.  That  the  sanction  by  the  Hritisli  (lovciJitnctit  of  thu 
attack,  supplied  any  possible  delieiency  in  tin;  instructions. 

4ih.  'J'hat  the  Kxeculive  Department  ol"  dur  (Jovcrnnient 
has  decided,  that  the  relation  in  whieh  (jieal  jirilain  stands 
towaids  our  (loveriuneul,  as  to  the  alliiir  of  the  Caroline,  is 
that  of '*  i/w/J'tAy/  u'(ir;^^  and  that  "individuals  con(.'eincd  in 
that  transaction  ouij;hi  not,  by  the  principles  of  public  law, 
and  the  general  usage  of  civilized  Stales,  to  bo  holden  |)erson- 
ally  responsibh.',"  and, 

5th.  That  such  decision,  by  the  Kxeculive  Dcpailmenl  of 
our  Government,  is  final  and  conclusive  upon  all  the  courts 
in  the  United  Stales. 

It  remains  for  us  now  to  incpiire  whether  the  mode  of  relief, 
by  habeas  corjjus,  sought  by  McLcod,  ought,  under  the  circum- 
stances, lo  have  availed  him. 

Upon  this  branch  of  the  case  Judge  Cowkn,  lor  the  sake 
of  argument,  concedes  to  McLcod  the  impunity  which  he 
claimed,  as  being  one  of  the  military  force  who  made  the 
attack  upon  the  Caroline,  yet  decides  that  he  cannot  be  dis- 
charged upon  habeas  corpus,  because  the  grand  jury  have  in- 
dicted him  for  murder. 

The  principle  advanced  by  the  Judge  is,  that  a  man  charged 
with  rtiiHrdcr  bij  the  Jindin<r  of  an  indicfmrnt  by  a  grand  jury, 
cannot,  under  any  circumstayiccs,  be  admitted  to  bail,  or  be  dis- 
charged on  habeas  corpus.  We  readily  concede  that  in  a 
case  where  a  person  cannot  be  admitted  to  bail,  he  cannot  be 
entitled  to  a  discharge  on  habeas  corpus. 

The  Judge  has  cited  several  cases  where  applications  were 
made  to  admit  to  bail  persons  charged  with  murder.     The 


^ 


^  r( 


J  ihc         * 

!ic,  is 
II  iin- 


sake 
he 
c  the 
dis- 
vc  ill' 


in  a 
lot  be 

were 
The 


f 


.    ,   •  37 

cases  cited,  however,  are  all  cases  where  the  application  was 
iiiad(;  b'fore  indictment ;  and  what  is  said  hy  the  Judges  about 
the  cilL-ct  of  an  indictinftit,  as  precluding  the  possibility  of 
lettinu[  to  bail,  is  tii(;re  dicta;  that  ({ue.'ir.tui  not  having  arisen 
in  a  single  case  cited.  Hut  although  Judge  Cowen  admits 
that  his  (!a.s('s  •'  wt-re  all  hr/hrc  intliiimunt  Jouml,^*  he  says  tlie 
principle  (»f  refusing  bail  ujirr  iinlicimcut^  Wn  muidcr,  ''has 
never,  that  we  arc;  aware  of,  bet^n  departed  from  in  practice 
under  the  Kiiglish  habeas  corpus  act."  Had  the  Judge 
8(!arched  as  diligently  liir  cases  in  favour  of  this  application, 
as  ho  seems  to  have  done  for  cases  nguinst  it,  he  certainly 
would  have  come  to  a  dillerent  conclusion  as  to  the  existence 
of  authorities  for  letting  to  bail  after  indictment,  whatever 
might  have  been  his  conclusion  na  to  the  true  |)rinciple  of  law. 
Whilst  th(!  Judge  has  not  been  able  to  cite  min^lv  case  where, 
after  indictmnit,  {he  (|ueslion  of  bail  has  actually  arisen,  we 
hav(3  been  abie  to  liiid  several,  where  the  (|ucstion  has  not 
only  arisen,  but  where  the  prisoner  has  been  let  to  bail  after 
indictment  f(>r  murder  and  other  high  crimes. 

3  Baton  A'>.  4^0,  title  Habeas  Corpus :  "  Also  the  court  will 
sometimes  examine  by  aflidavit  the  circumstances  of  a  fact 
on  which  a  prisoner  brought  before  them  by  an  habeas  coj-jms 
bath  been  indicted,  in  order  to  inform  themselves,  on  examina- 
tion of  the  whole  matter^  whether  it  be  reasonable  to  bail  him  or  not. 
And  agreeably  hereto,  one  Jackson,  (4  Geo.  III.)  who  had 
been  indicted  for  jn racy  before  the  session  of  Admiralty  on  a 
malicious  prosecution,  brought  his  habeas  corpus  in  the  said 
court,  in  order  to  bo  discharged  or  bailed.  The  court  examined 
the  whole  circumstances  of  the  fact  by  affidavit ;  upon  which  it 
appeared  the  prosecutor  himself,  if  any  one,  was  guilty,  and 
carried  on  the  present  prosecution  to  screen  himself;  and 
thereupon,  the  court,  in  consideration  of  the  unreasonableness 
of  the  prosecution,  and  the  uncertainty  of  the  time  when 
another  session  of  Admiralty  might  be  holden,  admitted  the 
said  Jackson  to  bail. 

3  East.  165,  King  vs.  Marks.  Le  Blanc  says  :  '*  This  court 
have  clearly  a  right  to  bail  the  parties  accused  in  all  cases  of 


t  ; 


I 


38 


folony,  if  llicy  sec  occnsion,  whnicver  there  is  auij  douht  cithtr  on 
the  law  or  (hv  facts  ol"  I  ho  ca^•o." 

Wood  worth,  J.  in  thr  cjise  of  'I'aij/oc,  6  Cow.  58,  citrs  with 
approhaliou  this  vn\c  ol'  Lc;  lUaiic  lie  srivs:  "  Tlir  ((tiut 
will  hail  whenever  there  is  any  doiiht  on  th(>  law  or  the  /acts 
of  the  ease." 

It  is  true  these  were  eases  hcfore  iiulietiiuMit.  Ihil  liie  rule 
is  laid  down  wilhoul  liiiiilatioii  ;  and  we  eaii  se(^  no  reasf)n 
for  limitinu;  it  to  eases  before  indielnient,  espcH'ially  where  the 
prisoner  shows  "there  is  donht  on  \\\c  lair  of  \hr.  ease,"  and 
more  espeeially  when  he  shows  (hat  "  hv  the  law  of  the  ease" 
he  is  innoecnt  of  th(»  crime  iinnnled  to  him. 

I  liacon  Ah.  '>\()''\,  title,  Hail,  in  rriiiiinal  cases  :  "  So  if  a  man 
be  convicted  of  ielony  upon  evidence!  by  which  //  p/aivli/  ap- 
pears to  the  court  he  is  not  (rnilfij  of  /V,"  he  will  hv  let  to  hail. 
Why,  then,  not  let  him  to  bail  before  conviction,  "  'ii'hidainhj 
appears  to  the  court  that  he  is  not  guilty  of  it." 

5  Mod.  444,  ("apt.  Kirk's  case:  Mr.  Monlai!;u(j  moved  that 

Mr.  Kirk  mi^ht  bc^  admitt(ul  to  bail,  "  f()r  that  he  was  very 

■'dangerously  ill  by  reason  of  the  badness  of  the  air  and  the 

inconveniences  of  the  prison."     There  had  been  an  inquest 

by  the  coroner  for  nnndi'r,  and  also  an  indictment  by  the  grand 

The  couns(d  who  opposed  the  motion  for  bail,  said,  "  It  is 
true  your  lordshij)  has  poirer  to  bail  in  treason  or  murder ;  but 
you  will  not  exert  that  power  nidess  it  bo  in  extraordinary 
circunistanecs,  as  in  somi^  cases  that  have  been  (juoied,  and 
especially  in  such  whtre  the  prosecution  is  thonght  not  to  be  tvcll 
grounded.''^  [Holt,  Chief  .lusticc.]  *'  In  this  case  I  do  not  thiidv 
the  aflUlavits  are  lull  enough.  It  does  not  appear  that  by  this 
imprisonment  they  are  in  danger  of  their  lives."  Here  is 
'no  intimation  that  tlu^  iudictm(Mit  precludes  all  inquiry,  on 
'the  contrary,  the  refusal  to  bail  is  upon  a  full  intpiiry  into  the 
merits  of  the  facts  upon  which  the  application  is  founded. 

In  Cohi's  Entries,  ;554  to  M^O,  are  three  eases,  copied  from 
the  rolls  of  the  court,  where  there  had  been  uidictments  for 
murder,  and  the  prisoner  afterwards  let  to  bail. 


f  • 


-- -jr  /T 


39 


13 

on 
ic 

m 
'or 


rii 


I   Sdl/c,  104. — .1.  S.  hciri^^  coininilird  upon  fiu  indirtmcnt  for 
mdcr,  iii()V(!(l  to  he  liiiilcd.     "  (1 ,.'  '  Unhrshij  niul  Tiirtnn  worn 


lltl  IdiililiL;  liilii,  IxMMii^i;  t/ic  rviiliiicc  ujinu,  the  (i/JldavU.t  iffitl  (ltd 
not  nccrn  la  (hem  miJIUirnl  li>  jinnr  /niii.  iniil/ij.      Iloll,  (/'liirlj  iis- 


tifc,  jiikI  (ii>uliL  nuifni.      'I'lic  cvidrncc  il 


(irs    !i 


Wrv.y 


liilM,  :iti(l 


l,li;il,  is  ciioiiL'Ji.      'I'lic  ;illn\viiiH    llic  rrccdftiii  (»!"  Ii;iil  rii;iy  flis- 
(;(»iii;ii;{!  llic  |»ios('ciiii()ti  ;  iImucIoic  il  is  ii(»l  lit  llic  coiiil  should 


(locli 


ire.  llicir  oiiiiiioiiol  (Ik;  (fvidciicc  liclui'li.-iiid  :   li»i  it,  iiiiist. 


pr('jiidi(;(!  tli(!  prisoner  mi  tlic  om-  side,  or  tlio  proscriitioti  on 
the  oilier."  Here,  loo,  llie  i.'ieiils  of  llic  Mppliciil  iitli  wero 
loolv(  (I  into;  ;ind  :illlioiinli  l);iil  w  ;is  rdiised,  it  vv;is  not  Itreunse 
tliei(!  \v;is  ;iii  iii(li<tiiirnf,  l»ut  l)ee;ins(;  the  court,  weic  e(|ii;il|y 
divided  upon  the  inerits  of  llic  ;i|)plic!il  ion. 

,lud/^c  (''OWi;\  cites  ii  c:is(!  on  lliC  .lavir  poirr  .'is  tli(;  ;il)oV(\ 
to  show  lli.'if,  ;i  person  c;ninol.  Ix;  Id  to  h.'iil  un(lrr  nnij  ritrmn- 
slancc.s  (tflv.r  indicfinciU  !  .itid  yvX  ov(;rlooked  llic  one  cil,(;d 
al)ov(!  ! 

'i'lio  C!is(!  cited  hy  .Iiid^'(!  (.'owi;,\  i.s  the  c;isc  ol"  Lord 
Mohii/is,  iuid  (!vcti  in  tli.it,  il.  does  nol  .'ippciir  from  the  rejjort 
in  Salk.  whet  her  he  hod  or  had  nol,  hmi  indirird!  'I'lic  en  so  is 
referred  t,o  in  ii  Stmnirc,  Oil,  Ke.\  vx.  Djdlon.  'J'hc  ('liicf 
Juslicc  l,li(;re  siiid,  "  tli;il.  the  Lonl  Mokinih  case  wns  ;it  liord 
IIoll's  ch;i,nil)crs,  ;ind  not.  in  court,  ;is  the  hook  rej)orl,s  it.; 
fmd  (hat  (he  lords  hailed  him  after  indi((Tnenl  Jhr  mu^'der  was 
founds 

Another  c;ise  nmy  he  .-iddcd,  of.-i.  pcison  indi(:l(;d  for  mur- 
der b(;ing  lei  lo  hiiil.  \V(i  roier  lo  ihc  l;i,ic  case  of"  ihe  young 
student,  who  was  indieted  for  the  murder  of  I'njfessor  Davis, 
at  the  University  of  Virginia. 

As  to  the  right  of  courts  to  hail,  there  is  no  difli.'rencc  be- 
tween cases  of  murde-r  or  the  highest  grades  of  manslaughter. 
— Sec  SuthcrlaJid\<i  opinion  in  Taloe\'i  case,  G  (Jow.  />5. 

Seljridsfc,  indicted  in  Massachusetts  for  manslaughter,  was 
let  to  hail  after  indictment,  (ioodwin,  in(Jicte(l  in  New  York 
for  manslaughter,  was,  after  one  trial,  and  the  jury  not  agree- 
ing, let  to  bail  by  Chief  Justice  Sj/encer. — 1  Wheder^t  Crim. 
Cas.  434. 


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Thus  it  will  be  perceived,  that  wliilst  Judge  Cowen  is  not 
able  to  cite  a  single  case,  where,  upon  applicntion  to  bail  after 
inJictmevt  for  murder,  the  court  has  ?aid  the  I'.ict  of  an  indict- 
ment was  conclusive  against  it,  we  have  been  nble  to  cite  S(.'veral 
cases  in  which  the  application  was  made  after  indictment ;  in 
some  of  which  the  indicted  person  was  let  to  bail,  and  in 
others  refused.  Yet  in  none  of  these  cases  is  the  idea  ad- 
vanced that  the  indictment ineckules  all  inquiry.  In  all  of  thcni 
the  yowcr  is  conceded,  but  not  to  be  exercised,  "  unless  in 
extraordinary  circumstances."  All  the  cases  to  be  found  in 
which  the  idea  is  advanced  that  an  indictment  j'rcch/des  all 
inquiry,  are  cases  where  7io  indictment  had  been  found  ;  and  the 
remarks  of  the  judges  upon  that  point  are  mere  dicta,  and 
unworthy  the  character  of  grave  authority.  That  the  court 
have  the  power  to  look  beyond  the  indictment,  may  be 
proved  to  the  common  sense  of  every  one,  by  a  few  ex- 
amples : 

Suppose,  upon  circumstantial  evidence  before  a  grand  jury, 
a  person  is  indicted  for  the  murder  of  another,  and  is  arrested 
and  imprisoned  to  lake  his  trial  ;  suppose  such  prisoner 
should  afterwards  sue  out  a  habeas  corpus,  and  u[)on  being 
brought  before  Judge  Cowen,  should  make  a  jn-ofert  of  the 
supposed  murdered  man,  in  full  life  and  vigour,  his  identity 
placed  beyond  all  question  ;  would  Judge  Cowen  say,  there 
being  an  indictment  by  a  grand  jury  precludes  all  inquiry,  and 
you  must  continue  in  prison  until  a  court  shall  be  held  for 
your  trial .''     Such  are  the  doctrines  of  this  opinion  ! 

Suppose  Robinson,  the  murderer  of  Ellen  Jcwctt,  should  be 
again  indicted  by  a  grand  jury,  and  arrested,  and  finally 
brought  before  Judge  Edwards  on  habeas  corjms,  for  a  dis- 
charge, on  the  ground  that  he  had  been  once  tried  for  the 
same  offence  and  acquitted.  He  produces  the  record  of  ac- 
quittal ;  yet,  by  the  decision  of  Judge  Cowen,  the  Judge  who 
tried  him  would  refuse  to  look  behind  the  indictment,  would 
refuse  a  discharge,  and  remand  him  to  prison  to  wait  the  sit- 
ting of  a  court,  there  to  go  through  the  form  of  producing 
belbre  a  jury  the  record  of  his  former  trial  and  acquittal ! 


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41  ♦ 

Judge  CowEN  fancies  that  he  hasciied  a  case  even  stronger 
than  the  one  we  have  supposed,  of  a  second  indictment  of 
Robinson.     He  says : 

"  In  Rex  vs.  Acton,  2  Str.  851,  the  prisoner  had  been  tried 
for  the  murder,  and  ac(iuittcd.  Afterward,  a  single  justice  of 
the  peace  issued  a  warrant,  chargliig  him  with  the  same  murdeVt 
upon  wliich  he  was  again  committed.  On  an  offer  to  show 
the  Ibrnier  acquittal  in  the  clearest  manner,  the  court  refused 
to  hear  the  prool".  On  the  authority  of  this  case,  Mr.  Cliitty, 
at  the  page  just  cited,  lays  down  the  rule  that  the  court  will 
not  look  into  extrinsic  evidence  at  all." 

Now  this  case  is  stated  by  the  Judge  entirely  wrong.  The 
person  was  not  arrested  for  the  same  ojjhicc.  The  defendant 
was  the  keeper  of  a  prison,  and  was  indicted  hyjmir  several 
indlcla)ents  for  four  several  murders,  and  the  question  on  the 
trial  was,  whether  a  place  called  the  stro7ig  room  was  a  proper 
place  to  confine  disorderly  prisoners  in,  the  four  prisoners 
having  died  whilst  so  conlined.  The  jury  acquitted  the  de- 
fendant. A  single  justice  afterwards,  upon  a  new  information 
oi' II  Jl/th  person  having  been  put  into  that  room,  and  dying, 
thought  fit  to  commit  the  defendant  again  for  n  fifth  murder. 

Tb  :  court  refused  to  bail  the  defendant,  and  he  remained 
until  the  Assizes,  when  no  bill  being  found,  he  was  dis- 
charged. 

Thus,  instead  of  being,  as  Judge  Cowen  supposed,  a  com- 
mitment a  second  time,  after  acquittal  for  the  same  offence^  it 
was  for  an  entire  new  offence.  We  cannot  but  express  our 
surprise  that  the  Judge  should,  even  if  he  had  found  such  a 
monstrous  case,  cite  it  with  approbation. 

Suppose  a  person  in  1816  had  been  arrested  and  indicted 
for  murder  and  arson,  committed  in  the  attack  on  BufTalo,  by 
the  British,  during  the  war.  Suppose  such  person  brought 
up  by  habeas  corpus  before  the  Supreme  Court,  claiming  the 
impunity  of  a  soldier  in  time  of  war.  Could  the  court  say, 
we  are  satisfied  that  you  cannot  be  guilty  of  murder,  but  as 
the  grand  jury  have  found  an  indictment,  we  are  precluded 
from  looking  into  the  matter,  and  you  can  neither  be  dis- 
6 


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42 


4* 


cliart^od  or  lot  to  bail,  but  must  reiimiti  in  prison  until  llic 
pn^pcr  court  sits  lor  your  irinl  ? 

Sucli  iiro  ck'arly  I  ho  doclrincs  ol"  Judge  ('ovvkn.  lie 
says  : 

'•  It  if!  proper  1(»  ndd,  lliat  il'llir  matters  urged  in  argument 
could  have  any  li>gal  ellei-t  in  favour  ol"  the  prisoni-r,  I  should 
i'vv\  ei.;irely  clear  that  ihey  would  be  of  a  naliu'c  availnble 
belore  the  jmy  "«///•  And  that  aeeordiug  to  the  setthnl  rules 
of  ])roeeediug  on  liabrdu  coijiiis,  w(!  should  have  no  power  ever 
to  consiiler  them  as  a  ground  for  disithaiging  llu;  prisoner." 

Now,  instead  of  su(di  a  rule  pr(wailing,  we  liavc  seen  tbat 
in  tunnerous  oases,  both  in  this  (M)untry  and  in  Kngland,  ])ri- 
soners  have  been  let  to  bail  after  indietmeui  l()r  murder  and 
otb(M' crimes  of  the- highest  grade.  We  have  also  seen  "  that 
alter  a,  man  h;is  be(Mi  amvictcd  of  felony,  uj)on  evidence  by 
which  it  plainly  appears  to  the  court  he  is  not  guilty,  ho  will 
be  let  to  bail." 

In  the  famous  conspir.^icy  cases  in  the  city  of  New- York, 
after  the  Land)crts  had,  by  writs  of  error,  reversed  the  judg- 
ments agaiust  them,  Hyatt  and  Mow(.'t,  who  were  under  .svw- 
taicc  and  sull(?ring  punishmenl,  by  sejxirofc  indictments  and 
convietious,  applied  to  the  Su])reme  (~^ourt,  and  were  dis- 
cliarii;cd  on  luihrtn  rovju/s,  without  bcnug  put  to  tlieir  writs  of 
error  to  reverse  the  judgments. 

The  true  rule  upon  thi'  sul)j(>et  of  bail  or  discharge,  after 
indictment  for  murder,  undonbt(Mlly  is,  for  the  judge  to  refuse 
to  bail  or  discharge  upon  any  alhdavits  or  proof  that  is  sns- 
ceptihlc  of  being  controverted  on  the  other  side.  WIkmi,  however, 
the  prisoner's  evidence  is  of  that  positiv(^  and  certain  charac- 
ter that  it  cannot  be  '\irainsnid"  then  tin;  prisoner  is  entitled 
to  be  bailed  or  discharged,  as  in  the  case  whi^re  the  man 
supposed  to  be  nnnulered  is  living;  when;  the  prisoner  has 
been  tried  and  acipiitted  of  the  same  olli-nce  ;  or  where  the 
supposed  murder  was  a  homicide  connnitttul  in  a  war  between 
two  nations. 

As  applicable  to  the  ease  under  consideration,  if  the  attack 
on  the  Caroline  was  authorized  and  sanctioned  by  the  Cana- 


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(li.'in  jujtlioritios  and  tlio  British  ( Jovcrnment,  ihc  evidence  of 
such  aiiihori/atioM  riiniished  by  the  Hrilish  (Government  and 
the  Utiiied  Slates  is  ol'  that  eoiichisive  and  record  cliaractcr 
that  it  cjinnot  be  controverted  ;il  the  irinl.  If  [)ro(bici'(l  at  a 
trial  of  the  indictirient,  it  would  show  a  stute  ol"  war  between 
the  two  eountrit;s  of  tlie  "  impnfcct  .so/y"  st.-ited  by  Uutherforth, 
but  neverthelefls  a  "  lawful  war,''^  whieli  furnishes,  under  the 
hiw  of  nations,  an  inii)unily  to  Mefiiiod,  a  soldier  eng;igt;d  in 
it.  If  such  would  be  the  efUuM  of  that  evidence  on  a  trial  of 
the  indictment,  then,  on  hahais  anims,  the  sn,me  incontrf)Vcr- 
tible  evidence  authorizes  a  disch:trge  by  the  court. 

Another  ground  ui)on  which  tlu^  application  for  a  discharge 
ought  to  have  prevailed  is,  that  our  own  Government  has  set- 
tled the  chnrader  of  this  hostile  attack.  It  has  decided  it  to 
be  an  "  miwrfcct  sort  of  war"  and  that  "  individuals  concerned 
in  it  ought  not  to  be  holden  persouidly  i-es|)on.sible."  That 
decision  being,  .as  we  have  shown,  binding  and  conclusive 
upon  courts,  the  prisoner  ought  t(j  have  been  disciiarged  on 
his  haljcas  corjius. 

We  here  dismiss  this  subject,  hoping,  for  the  chfiracter  of 
our  country,  that  the  judgment  of  the  Supreme  ('ourt  may  be 
reviewed,  and  an  opinion  so  unsound  in  all  its  parts,  as  we 
conceive  Judge  Cowkn's  to  be,  rendered  nugatory  as  an 
authority  l<)r  the  future. 


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